SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 13, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): I wonder if we can start this meeting.

Because this is televised, I'm forced at the beginning of every meeting to tell people that this is the 26th meeting of the Special Joint Committee on Child Custody and Access, studying child custody and access relative to the Divorce Act.

I'm very pleased today that we have with us as witnesses two people from out of the country, from the state of Michigan.

We have firstly Judge John Kirkendall. You will see in your notice of meeting that he is listed as a retired judge. That is absolutely not true. He was quite surprised to learn that he was listed as retired. Judge Kirkendall sits in Ypsilanti, Michigan, in a form of unified court. Also, with him is Professor Tom Darnton, who is both an academic and a practitioner.

We wanted to hear about other jurisdictions' experiences with this topic. We have a lot of questions today, and I think we have a lot to learn from their experience. So in our usual fashion, I'll ask Judge Kirkendall to start and make his comments, then Mr. Darnton will make his, and then we will proceed to questions.

His Honour Judge John Kirkendall (Washtenaw County, Michigan): Thank you, Mr. Gallaway. It's great for me to be here today.

I am delighted to report to you that I not only come to represent a court in Michigan that deals with the sorts of issues you've been struggling with over the last months, but I also am a taxpayer in Canada, so I think it's wonderful that I get a chance to be here. It turns out I am a neighbour of Shaughnessy Cohen on Pelee Island, so I have as a very dear friend one of your members.

I have reviewed the transcripts of your previous meetings and the witnesses who have appeared before you, and I know of your concerns about a number of issues I would like to address for you this afternoon.

You have rather consistently raised the issue of education, not only for members of the judiciary but also for lawyers, families, and children. That is a very important issue and I want to just take a minute to talk about that with you.

I also should point out I serve on a couple of educational committees. One is the Michigan Judicial Institute, which is an organization that exists to train judges. I also am on the faculty at the National Judicial College in Reno, which is where judges go periodically for a national perspective and various kinds of training on issues.

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Education is a critically important part of what you're doing, and there may be some things this committee may wish to do or recommend be done in order to assist in the education of judicial office holders.

One of the things we have done that has worked out well for us is that in Michigan—now understand that in Michigan, our divorce law is state-wide, it isn't a national divorce law—our Supreme Court has taken charge of the educational process for judges and have created the Michigan Judicial Institute. It's a funded part of the court system, and judges are required, two times a year, to go to a three-day educational session. That turns out to be a very important thing when it comes to training and learning about the kinds of issues you have been discussing.

Secondly, the National Judicial College is a very important place for judges to be able to go periodically. Most judges try to go there once every three years in order to get a national perspective on current issues they may not have thought about in their home states. It gives them a little bit more opportunity to deal with those issues. As you're working your way through the issues of dealing with families, your thoughts about education are critical, and that's just one idea of how that might be approached.

In Michigan about three years ago, our Supreme Court decided it would be a good idea to test the notion of a unified court. The Supreme Court anticipated that within that unified court we would develop a family division that would deal with family issues. The theory was that one family would go before one judge.

This idea got its genesis when we noticed that families that have children who are abused and neglected, families that have one parent or the other who is accused of domestic violence or assault—these kinds of families might end up going to three or four courts in order to resolve all their problems. We might have a dad in criminal court for a criminal violation; we might have a child in our juvenile division because of abuse, neglect, or delinquency; we might have parents in a circuit court because of a divorce that's going on. We are using a great many judicial resources in dealing with this one family. Part of the theory was that if we could get all of these matters before a single court, then perhaps one judge, who could be very familiar with this family, could deal with all those family issues.

So our Supreme Court said let's try that out and let's name six pilot sites in the state of Michigan to look at this issue. Our court was selected as one of the six pilot sites, and I was asked by the Supreme Court to serve as the state-wide coordinator for all the different sites. I thought I might just mention to you some of our experiences in that to see if they might have some relevance in your deliberations here.

We have been doing that now for about two years, and we have learned some things from this experience. One thing we have learned is that we are able to act more efficiently, more knowledgeably, and more quickly in handling family issues. As a court, when we're able to see one family before us with all these problems, we're able to give more consistent treatment to that family than that family would receive if it went to a variety of courts.

We're also discovering something else. When you have a limited number of judicial resources in an area and you have decided you're going to give families a priority—and that's a good thing—you're then taking judicial resources from another area. That may be criminal law or it may be civil. It may be your civil cases. We're noticing that now that we're giving our families priority, our civil docket is now building up. We're now setting our civil cases in our county in the year 2000, which we think is unacceptable.

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So when we're designing a system and we're talking about giving families more resources, we need to keep in mind the fact that when we take resources to give to families, we may end up taking them away from another area that's going to be needing those resources as well.

How we have handled that situation and how we're trying to resolve that is to have our judges cross-assigned. So even though I'm serving in family court and family court is my responsibility, I also have authority to decide cases in civil areas and in criminal areas. So when one judge gets overwhelmed with a docket, I can be pulled in to deal with that.

Now how does that affect what this committee ought to do and ought to recommend? It seems to me that you have an enormous challenge in Canada. Michigan is a very diverse state, but your country is far more diverse than our state. When we start dealing with a system that's going to affect many areas, we have to be—I know you have been doing this because I read over your concerns about this—interested in how it's going to impact all the different populations that are going to be affected.

So my suggestion is that one of the ways a legislative initiative can work is for the legislation to take a rather broad picture and suggest to the individual, however your courts are organized.... I'm not too sure I understand whether it would be by district or how that would be done, but each area with a court should then submit a plan that would be approved by some body, hopefully the Supreme Court, to ensure that the intent of the legislation you design is implemented, but without the legislation being so specific that it would not work in one area while it might work well in another.

In our system, we have now passed, as a consequence of the legislature working with the Supreme Court, a package that calls for family courts to be set up in each of the counties of Michigan. But this is recognizing that we have some counties with greater populations, some counties with more money to spend, and some counties that have a lot more resources in terms of psychologists and other kinds of things that we are mandating each of these counties to do. They are to prepare their own plan of how they believe that they can comply with the goal of the family court legislation. Then that's approved by the Supreme Court. That may be an idea that might have some relevance in the work you're doing.

You've been talking in your committee about the issues of visitation—that's parenting time—and access. There are indications of concern about what you do with custody and what you call it and those things. I think at this point I'd like to stop talking, because both Tom and I want to be responsive to questions and concerns that you have. Maybe we can get into some of those things. I know Tom has some thoughts about that himself. So that'll be my opening.

The Joint Chair (Mr. Roger Gallaway): Thank you very much.

Mr. Darnton.

Professor Thomas B. Darnton (Child Advocacy Law Clinic, University of Michigan Law School): Thank you.

I appreciate very much the opportunity to be here this afternoon and to have had the chance to do some thinking about our experience in Michigan in the last two or three years since this visit happened.

I guess a couple of things occurred to me that I would like to say from the outset. One is when you're dealing with custody kinds of concerns, it has been my personal experience—I think some of the other people who have studied this from a broader perspective agree—that you get a range of families. There's a goodly percentage of families, maybe up to half that come into the court system, that can manage their decision-making around custody without a lot of external interference. They have the capability.

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I like to label the parents of these families as having the ability to be truly cooperative. The primary thing they need from the legal system is education and access to or direction to the resources that already exist in the community. These are people who do have their children's best interests at heart. They are able to talk with each other.

Most of the time, people going into divorce are not experienced at the divorce process, but you can inform them about how it impacts their children. Here's a concrete example. You can talk to these parents and say that it's a bad idea for the two of you to carry on the discussions about your divorce settlement in front of your children. The children should not be a party to those discussions. They'll understand that. They'll be able to then avoid those kinds of behaviours without having any further structure from the legal system.

The next range has been identified as mid-range families. These are families that in the day-to-day routine of scheduling may be able to work things out, but it may be difficult. Consider things like getting children to and from their activities, arranging who is going to take them to church, or seeing that when the child is sick they are taken to the doctor to get appropriate care. It may be difficult if there are religious differences. The decision about which church the children are going to attend will be problematic. There's public schooling versus private schooling. There may be an elected medical procedure that's being advised.

These mid-range families will struggle with those kinds of decisions. There, the legal system can provide some assistance in terms of more of a mediation type of an approach to give them an atmosphere in which they can carry on these discussions and help them think of ideas they might not have thought of.

A third type is what I call parallel-parenting families. These are families in which you can expect that concerning a schedule, these families may not be able to work out a schedule themselves, but if they're provided with a schedule, they can follow that schedule.

These are parents who are able to be civil with each other, but for whom communication is difficult. Here, with these families, there's more in the way of assistance from the legal system in terms of making decisions that are more difficult and also in providing a schedule. Families can negotiate changes in schedules rather than to be constantly building a schedule anew. For families where communication is difficult, I think that's a better approach.

The fourth type is highly conflicted families. I looked through your testimony, and I see that you have heard a lot about these kinds of cases. These are the horror story cases. These are the ones that are in litigation for two or three years. Maybe there's some kidnapping involved. This is where you have really no functioning arrangement that evolves.

A legislative approach that is written with the idea of meeting the needs of that highly conflicted group is going to be problematic for the other three groups and really for the majority of families.

On the other hand, the highly conflicted families are the ones that chew up the court time. In terms of the time that the judge and the personnel that are affiliated with the court put in, these highly conflicted cases do consume a lot of time, so it's important that the systems that are designed have a focus on how to deal with those families.

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My own assessment is that strategies and techniques that focus either reducing the conflict between the families or reducing the opportunities for the parents to be engaged in conflict are the first and foremost things that you need to do. That may mean, in the case of custody and visitation or parenting arrangements, that it may be necessary to have a greatly reduced frequency of back-and-forth.

If parents are going to have a conflict every time there's an exchange, the plan for that family may need to be that the children will not see one of the parents as frequently. It may mean, for older children who can sustain it, being away from the primary caregiver. It may mean that the periods with the alternate parent are longer periods.

These are also the cases where firm judicial schedules and clear judicial decision-making pay great dividends. Once people get the understanding that like it or not, the judge is going to make a decision, they are often willing to either live with that decision or to begin to work, with the help of a mediator or referee, to devise their own schedule that they can agree on, and that they prefer over the one the judge has imposed.

I would also like to reiterate in support.... I was on the committee of lawyers and administrators who worked on the plan for our county—the Washtenaw County plan—for the unified trial court. We met at least monthly, often every other week, at 7.30 a.m. I was quite surprised at the number of my colleagues who were willing to show up consistently at that hour of the morning, and to work very diligently at putting together a plan for how we were going to take the pieces of the separate courts that had been involved in various aspects of family law and bring them together into one system.

We were able to devise a system that worked well in our county. It acknowledged the resources we had available in our county, and it tailored the system to that approach.

A system that had been designed for a neighbouring county—a county with which we are often compared, Oakland County—for example has its own evaluation unit that is funded by the court. They have psychologists on staff and they get work-ups done relatively quickly, which parties such as lawyers and judges and practitioners have come to rely on there.

A plan that was devised for Oakland County would not work in Washtenaw County, because we have no similar structure. The plan that we designed recognizes that the Ann Arbor area is fortunate to have a number of professionals of all the different types of professions that work with families. We have a system that relies quite a bit on the use of private practitioners of various kinds.

That same plan taken to the northern part of the state of Michigan, where lawyers, psychologists, and social workers are few, and hour-and-a-half or two-hour drives are common to get to them—again, that sort of plan wouldn't work.

So I think it is very important that any revisions that are considered be done in such a way that the local systems, the people who are actually going to have to put these things into effect, are given a good deal of opportunity to have input into the structure.

That concludes my opening remarks.

The Joint Chair (Mr. Roger Gallaway): Okay. I must say how impressed I have been with the fact that you have been following the proceedings of this committee and that you have a complete transcript of what has occurred here.

I hope that members feel free to question on any subject. We will start with Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you, and welcome to our committee.

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As you might have read, we've had a number of witnesses who have argued that the presence of violence in a family is a consideration that must be taken most significantly into account in making custody and parenting-time decisions. Whether even on a consent basis or imposed by the court, whether mediation can be used or not, violence in the family has been referred to by some almost as a trump card to cut off engagement or responsibility for working things out.

What I want to hear from you is how domestic violence is defined in your situation in Michigan. Is it treated in a gender-specific or gender-neutral way? What are the screening processes for families for this friend of the court worker you have or for judges to determine which families are affected by violence, what are false allegations or just contest tactics, as distinguished from dealing with real abuse?

Judge John Kirkendall: Perhaps I could take a little stab at responding to your question.

The issue of domestic violence is, as you know, a phenomenon that has been brought to life in the last few years and is far more pervasive than we originally imagined. People who may previously have suffered are now coming forward and indicating what the problems are in their household. Perhaps this is due to the economic abilities of a spouse now. They're not totally dependent upon the person who's committing the abuse.

At any rate, you've certainly identified an issue that demands attention. If you're looking at it from a point of view of a judge, domestic violence may determine how the property is divided. Domestic violence may determine who gets custody. Domestic violence may determine what the parenting-time arrangements are going to be. Domestic violence may have a role in determining how much spousal support is going to be paid, and the amount of the spousal support. It should be a factor in all those situations.

For the purposes of our Child Custody Act, we define domestic violence very broadly. Domestic violence does not have to be a matter in which police officers are called or criminal cases filed.

I have a book here that describes what that is. It indicates, “Domestic violence, regardless of whether the violence was directed against or witnessed by the child”. I'm reading here from a document called a “bench book”. This bench book was prepared by our county to assist our judges and our practitioners understand what the courts would do under a variety of circumstances.

I'm getting off the topic you raised for just a second. One of the things your members have been concerned about in your committee deliberations is why judges, under a variety of circumstances, come up with different results. What we have tried to do in this bench book, and what we're trying to do statewide with this bench book, is to point out situations that often come up in courts, and give a guideline to judges as to how they might respond to these situations so that we can give more predictable outcomes to situations that come up with some frequency.

We ask: Have there been any incidents of violence in the home by any party against anybody? Has there been a police report, arrest or conviction? Has there been a pattern of violence, whether reported or not reported? That's in general what we are talking about here.

My response to you is that domestic violence is a big challenge. There is no bright-line test to say that if you have domestic violence, then all visitation under all circumstances should be cut off. There is no bright-line test to say that anything should occur. I think we're going to have to tailor, and I think that's why we have judges and we have courts and we don't have computers deciding what's going to happen in any one of these cases. You're going to have to look and see precisely what the details are.

You brought up the friend of the court. I want to point out that the kind of case you're describing is what Professor Darnton has referred to as a “highly conflicted” case. I think in a highly conflicted case we have to have resources available to the court.

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The court is not a psychologist, a psychiatrist, a social worker, nor typically an expert in child development issues. So you're going to need to have available to you some assessment tool of some kind to figure out what is going to be the best interests of the children in this particular case.

We have two adults who are able to fend for themselves. We have children here who need to be looked out for, and the court is looked to, to provide that service. The court cannot provide that service if it doesn't have access to some kind of expert opinion in that kind of a situation.

Often what happens in those cases is that these families are interviewed by the friend of the court. The friend of the court then determines whether any other kind of expert is necessary to be utilized in this kind of a case. If so, that expert then makes recommendations to the court on how it should fashion its parenting time, how it should construct its parenting arrangements, and that sort of thing.

I'm sorry, it's not a short, simple answer.

Mr. Paul Forseth: Mr. Darnton, do you have anything to add to that?

Prof. Thomas Darnton: Yes.

First of all, the problem of domestic violence is one that has gained a good deal of attention. I've been practising law since 1972, and it's certainly during the time I've been practising that I have seen the legal system and our society in general become much more aware of the seriousness of the problem of domestic violence.

In regard to your question, as far as treatment programs are concerned, and also screening, in my experience there are families who are in the process of divorce, people who have not been violent with one another, and for one reason or another, the relationship deteriorates to the point where there is an outbreak of violence that happens in the context of divorce. If that is the first time the violence has occurred and if it's also the sort of violence that, while scary, has not resulted in serious injury to anyone—these can be objects being thrown about the house, threats being made, but with not a carrying out of the threat, and sometimes there will be physical struggles that are not combative, situations where weapons are not involved—that's a type of domestic violence that looks to me like it's situational. It's created by the stress of the divorce, and if you deal with the stress of the divorce, you can work with those families and expect that the victims of the domestic violence can be protected to the extent that they can still participate in a negotiation process, that you can consider parenting arrangements that have children going back and forth in those kinds of contexts.

On the other hand, if you find in the process of reviewing the history with a family that the domestic violence predates the divorce—it may be the reason for the divorce, but in any event, it's something that has been a part of the family's structure from the beginning—then those kinds of cases are going to be high-conflict cases. You have to recognize that the victims, whether they are the spouse or the children or both in those families, cannot and should not be expected to engage in negotiations. A parent who has a long history of abusing either a spouse or a child needs to be looked at very carefully when you're designing parenting arrangements. I don't think there's anything that suggests a parent who has abused a child over time is going to stop that because of anything we do as far as structuring the schedule.

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There are treatment programs around, which are mostly accessible through the criminal system. People design programs which they believe are effective in changing the behavioural patterns of the batterers. I've seen them work on some occasions, but I've also seen people come through those programs and be relatively unaffected by them.

For those kinds of persons.... In our county, the distinction ends up being the cases that the prosecutor evaluates and believes ought to be treated in a criminal justice system. With respect to those cases, I think you have to be very cautious about allowing a normal kind of parenting pattern.

In the cases where the prosecutor looks at them and decides that these cases are not serious enough to warrant prosecution, those are situations where, for better or worse, we need to work with those families, and, I think, particularly with the older children. If the older children can be taught what to look for and encouraged not to “tattle” on a parent but to speak up to a therapist or teachers or the other parent about violence—or the threats of violence—when they see it, it is possible to work there.

A role that I've occupied from time to time is that of guardian ad litem, whereby I represent the children in these difficult cases. And in that context, I have asked mental health professionals over and over again to tell me why we should be encouraging any sort of parenting contact with this parent who has a poor track record as far as violence or substance abuse or just demonstrating interest in the child.

And consistently, the answer I hear from the mental health professionals is that it's better for children to know who this parent is because of the process of individuation, of developing their own sense of identity as an adult, and that if we don't give them a real person from which to do that separation, they will create a fantasy person and do the separation from that fantasy person. And that is what causes the cycle to repeat itself in the next generation.

So based upon that consistent input that I've had from mental health professionals, I do think that where possible we want to try to work with families to have contact. Domestic violence is a very serious problem, but like most serious problems, there are no simple answers for it.

Mr. Paul Forseth: Thank you.

The Joint Chair (Mr. Roger Gallaway): Senator Cools.

Senator Anne C. Cools (Toronto Centre, Lib.): Thank you very much, Mr. Chairman.

I would like to welcome the witnesses to Canada and to Ottawa in particular. I hope you take a moment to go out to see the last of the tulips, because it really is spectacular. I'm told that in Ottawa we plant two million or three million tulips. So if no one has told you about Ottawa tulips, I'm doing that now.

Judge John Kirkendall: Thank you.

Senator Anne Cools: I have a couple of questions for you. First, in Canada we have what we call inferior court judges and superior court judges. If you were in our system, what would you be?

Judge John Kirkendall: We are a court of general jurisdiction. We're the court that is just below your court of appeals.

Senator Anne Cools: So you're a superior court judge. How are you appointed?

Judge John Kirkendall: Typically, you run for election in Michigan, but I happened to be appointed because my predecessor retired during an unfulfilled term. So I was appointed by Governor Blanchard, our former ambassador here, and I've been elected ever since. We're elected for six-year terms.

Senator Anne Cools: So you're what we would call a provincial court judge.

Judge John Kirkendall: Yes, that's correct.

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Senator Anne Cools: Okay, I understand.

When you were speaking, at one point in time I had the distinct impression you were speaking about multiple-problem families, not just divorce cases. You seem to have extensive experience with multiple-problem families. That was what I was hearing. Am I correct in that?

Judge John Kirkendall: Yes, that's correct. I brought that up because one of the objectives of our legislation was to see if we couldn't put families with multiple problems in front of the same judge.

Senator Anne Cools: Okay, I understand.

Judge John Kirkendall: The reason for that was we'd like to have the judge who's familiar with that family handle the rest of that family's problems, but also it takes a little while for the next judge to get brought up to speed, so we thought we could save judicial resources by doing that.

Senator Anne Cools: Okay, I understand. That would explain what I was hearing, because in your presentation I heard from you more preoccupation with a multiple-problem family than the divorce case, in and of itself.

Judge John Kirkendall: I hope I didn't sound too preoccupied with that, but I might have.

Senator Anne Cools: No.

Judge John Kirkendall: The divorce part of it is really what we are here to talk about today.

Senator Anne Cools: Precisely. I have a lot of sensitivity for people who have to deal with these problems. I spent a lot of years working in it.

Some of the other cases you were talking about would be common law cases—

Judge John Kirkendall: All right.

Senator Anne Cools: —but among the divorce cases you actually process and grant divorces in, what percentage of those cases use domestic violence as grounds for divorce?

Judge John Kirkendall: Domestic violence is a very small percentage of the cases I see.

Having said that, I would say that of all the cases we see, between 80% and 90% go flying through our system with no problems at all. But if you were to walk into my courtroom during a motion day and hear people who have problems with one another, you would be amazed, because it's the few families, as you probably know, that take up most of the time.

Senator Anne Cools: Oh, absolutely. The multiple-problem families, as you say, consume a lot of time. They have enormous problems, and they think we have a duty to try to get to the bottom of some of those problems.

I have been trying to track reasons for divorce or causes of divorce for the past 50 years or 100 years as cited, and as the judge has just told us, despite what we hear, physical cruelty or domestic violence comes in a minority position in divorces. This is something we're going to have to face head-on at some point in time.

I'd like to go back a moment, your honour, to your bench manual. I take it that manual is a judge operational manual; it instructs you as you sit on the bench.

Judge John Kirkendall: Yes.

Senator Anne Cools: Who would have prepared that manual?

Judge John Kirkendall: We have a conference in our county once a year that's attended by all the attorneys and all the judges in our county. We talk about what the problems are and how we can improve the service we're giving to the public.

One of the things that was raised at a meeting one year ago was people said they would like to increase the predictability of what goes on in their courts, and how could we do that. So a group of people came up with the idea that if we prepared a manual that contained things that happen often.... For example, in this manual it deals with the topic of how you determine what's in the best interests of the minor child. There is a chart here that helps the judge and the lawyer determine that.

If somebody comes into court and wants to remove a spouse from the home during the divorce, what factors should a judge consider in making that decision? How does a judge go about deciding who gets what property in a divorce? If somebody comes into court and says “I need a personal protection order to protect myself against my spouse”, what does the court consider if the court is going to grant that? What factors do you consider when you're determining which parent is going to be the primary parent in any parenting plan? All these things are set forth in this document.

Senator Anne Cools: Right. So it is a work manual.

Judge John Kirkendall: That's right.

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Senator Anne Cools: And it's generated by your judges.

Judge John Kirkendall: It is, and we even have it posted, believe it or not, on our web site on the Internet, so families who are going through a divorce can go in and see what's going to happen in this circumstance. We think it is helpful that they can look at this and see what's going on.

Senator Anne Cools: It's very interesting, because, you see, on a related and similar issue, when we had Bill C-41 before us on the use of regulations to bring about the guidelines for child support, I raised a question as to why regulations were being used and why it was that the judges' conferences and the judges collectively, province by province, hadn't come together and come up with their own guidelines so it would be a judicial initiative. It's very interesting that what you're telling us here is that in your state, judges have taken such initiatives.

Judge John Kirkendall: And actually this just started in our county. It's not state-wide at this time. I have been placed on the education team to go around and talk to other judges. I've been trying to promote this. It's voluntary right now.

Senator Anne Cools: That's wonderful.

Judge John Kirkendall: It seems to be working.

Senator Anne Cools: Okay.

I have another question based on your manual. You read those passages about domestic violence. I heard you mention domestic violence and I heard you mention children witnessing violence. Maybe I missed it, but I did not hear you mention children who are themselves receiving violence.

Judge John Kirkendall: Yes, and I think what this—

Senator Anne Cools: Is it in that document? Did I miss it?

Judge John Kirkendall: No, you didn't miss it. That's just a given. If a child is a target of domestic violence, that is certainly a very serious matter and that counts, obviously, yes.

Senator Anne Cools: So it's not an oversight in your document; it's a given.

Judge John Kirkendall: Yes, that's correct. There is not a single person who reads this document who believes that if a person commits violence against a child, that is not going to be counted in this chart.

Senator Anne Cools: Okay, good. So it's included in the chart.

Judge John Kirkendall: It is.

Senator Anne Cools: It's included in your head, but it's not in the chart.

Judge John Kirkendall: Well, that may be the right way to say it.

Senator Anne Cools: Okay, perhaps just for our own purposes here, and I have no doubt, I can see very clearly....

Your child welfare—what we in Canada will call child welfare legislation.... We took a very brief look some days ago at the Child and Family Services Act, and we looked very briefly at the definitions of a child in need of protection. One very quickly learns that the Child Welfare Act does not take cognizance of or does not contemplate the difficulties of children in divorce circumstances. That may be residue from an earlier era, and I have no doubt that we will see a rush to begin to correct child welfare legislation to bring it into concert with the current era.

Two things have emerged in these hearings. One is the phenomenon of parental alienation. I don't use the word “syndrome” as much, but I use “alienation”. Second is the issue of false of allegations of abuse, either sexual or physical.

In your jurisdiction, have you, as a judge, and your colleagues addressed the issue of the deficiencies of child welfare legislation in contemplating the difficulties of children in protracted divorce custody disputes or whatever? I'm just wondering if you have any views on that.

Judge John Kirkendall: Yes. Let me say a couple of things about that, and then I think Tom would be happy to answer questions directly related to how we deal with child protection issues, because he's more familiar with that.

One of the things we need to think about when we're talking about our law that would involve people who are in charge of enforcing child protection is that when we're designing a new piece of legislation for divorce procedures, we need to fold in, as you mentioned, all the agencies we have that are trying to help the family right now, so that we're not being inconsistent. That's what you're pointing out.

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One of the things many communities have working for them, even if they don't have the psychologists or the psychiatrists—the community may be rural and so on—is that often they will have a child protection worker. So if you can design your legislation to be sure that this is a resource available to the court, and they're looking at the same kinds of things you're looking at in your legislation for divorcing families, I think that would be a great thing for you to do.

I think maybe Tom would like to address your other issue.

Senator Anne Cools: I'm very interested in what Mr. Darnton has to say, yes.

Prof. Thomas Darnton: Every year or so the university offers a joint seminar on child abuse and neglect, which includes graduate students in psychology and social work and law students. We taught that seminar this past fall. One of the things I learned from it was that if you did psychological profiles of children who came into the child welfare system as psychologically abused and compared them with those of children in the midst of high-conflict divorce, the children looked identical. Essentially, being in the middle of a high-conflict divorce almost by definition is equivalent to emotional abuse of children.

Senator Anne Cools: Absolutely.

Prof. Thomas Darnton: That's one of the reasons we need to recognize that although many families can handle on their own the problems associated with typical divorces, we have to be ready at the same time with a legal system that can address the problems of these more highly conflicted families.

One of the problems I see is that the mental health and social welfare system and the legal system have a very difficult time talking to each other around these issues. In order for the law, the legal system, to take action, there has to be proof that something has taken place.

You've raised the problem about false allegations. The question becomes, is the allegation true or false? The legal system can take months, and drain tremendous resources from the family, trying to come to a resolution about whether this happened or didn't happen.

From a mental health perspective, if the allegation has come up in the context of a family dispute, that is a family that is in need of services. A mental health professional can get in and work with the family and be concerned not so much about whether this event did or didn't happen, but what is the mental status of the child, what are the strengths and weaknesses of the parents, and how can we avoid situations where the possibility of these events recurring can be reduced dramatically without totally cutting off the relationship between the child and the parent?

I don't have a particular answer to that problem, but it's one that I think we need to recognize when we are designing legal systems. We have a constraint in our tradition that there needs to be due process of law. Before the state is going to act on families, particularly in a punitive way, there has to be a fair hearing. There has to be a process to determine guilt or innocence.

That process can often be destructive. You have a family that's troubled already, and if you encourage people to go into a system and fight, then they're going to go in and do that, and they're going to cause more damage in the process.

A question came up earlier about assessment tools in these kinds of situations. I do think a mental health professional who is appointed by or responsible to the court can be of great assistance to both the court and the parties. Sometimes this can be a court employee.

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If you have a larger urban area, you can have what we call a “friend of the court” office, which employs people who are skilled in doing these kinds of assessments. In other settings, you can have individual practitioners or clinics that contract with the court. But the critical thing is that these evaluators are responsible to the judge, and they're not under the control of any of the parties. They can provide, under the court's umbrella, very useful information.

I think it's also very helpful with these kinds of assessments that, if possible, you should get the mental health professional to stop short of making concrete recommendations about what should happen. The data or the information can be very helpful, but at the point where you come in with the recommendations, one or both sides are going to want to target the conclusions they're not happy with and they'll ignore the assessment information, which is really the best part of that information.

Senator Anne Cools: I appreciate that. I thank you. On our second round, I'll come back to it.

The Joint Chair (Mr. Roger Gallaway): Yes, we've got a long list, and our guests have to catch a plane.

Senator DeWare.

Senator Mabel M. DeWare (Moncton, PC): I also really appreciate you coming before the committee today.

I have two areas I'd like you to clarify. First, I notice that you're using the phrase “parenting time”. I'm really pleased to see that here, because we're trying to get away from custody and access.

The reason this committee was set up was because of the fact that we had so many people coming before our committee to tell us that they were being denied access even though there was a court order. They wondered what to do.

You have the “friend of the court” officer. Could you elaborate on that a little bit? It looks as if they're the ones who do the enforcing. We don't have that, so I'd appreciate it if you could explain that a little more to us.

Prof. Thomas Darnton: The “friend of the court” in smaller communities is an individual; in larger communities it's a whole office.

There are three separate functions the friend of the court performs. The first is a collection function. They collect and distribute child support, which is a very elaborate system onto itself. It's probably not what you folks are concerned about.

A second thing they do is an evaluation or assessment of what sort of parenting arrangements would be recommended for a particular family. That system is actually broken down into two levels.

We have a social work assessment done that's based on face-to-face interviews between the parties. Normally, there's a case worker with a social work background or training. Lawyers are frequently not directly involved with that. There is no face-to-face kind of confrontation. Parents come in individually with older children. The children may be interviewed separately, and then a recommendation is made.

There's a next level of that evaluation process that does involve a hearing in front of a referee. A referee is a lawyer who is either appointed or actually an employee of the friend of the court, depending again on the size of the county. At that hearing, lawyers are present, and witnesses can be brought in. It's a much less formal hearing than a trial. The referees will use those hearings to look for opportunities to create settlements in the process of the hearing. So that's the second function, which is the evaluation or assessment function.

The third function is also in the context of parenting arrangements to do some enforcement. If there is an established schedule and there is a deviation from that schedule, they have a hearing process. Again, these are informal. Lawyers are again frequently not involved. This is where the “friend of the court” officer will examine what the reasons were behind the particular problem that came up, will order make-up visitation if that's appropriate, and will recommend changes in the schedule.

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A schedule that will work for a two- to four-year-old child will not work for a twelve- to fourteen-year-old child.

Senator Mabel DeWare: Can they enforce it? Can this “friend of the court” officer enforce that schedule?

Prof. Thomas Darnton: Yes. There are various options, beginning with changing orders and requiring make-up time, to financial penalties or recommendations for jail time for the parents if the order is not followed.

Now, referees can't put people in jail, only judges can do that. It really doesn't come up very often that people are faced with that sort of a sanction.

Senator Mabel DeWare: Sometimes that wouldn't be in the best interest of the child if you had to put one of the parents in jail.

Judge John Kirkendall: That is true, but it is a remedy we don't hesitate to use if it becomes appropriate. Say we have a person who is vexatiously withholding visitation and the court becomes aware of it through the friend of the court. And say they have their hearing and it's determined that the order isn't being followed. Then that is an act of contempt for not following the order of the court. One of the potential reactions of the court is to put someone in jail. We would do that.

Senator Mabel DeWare: That's interesting.

Now on my other point, I'd like to just mention that in your Child Custody Act it awards custody to one of the parents: the court may provide for “reasonable parenting time”—I really like that phrase—of the child by the parents, grandparents, or others.

We're having a little difficulty. It has been brought to our committee over and over again by organizations for grandparents that these people are being totally denied custody. They have no right to even go to the court to ask for the privilege of being one of the custodial parents in a case of divorce. What is in your act that provides—

Senator Duncan J. Jessiman (Manitoba, PC): They have a right.

Senator Mabel DeWare: Pardon?

Senator Duncan Jessiman: They have this right under the act but they have to apply to the court.

Senator Mabel DeWare: They have to apply to the court.

Under your act, how do the grandparents fit into any of this access to their grandchildren?

Judge John Kirkendall: I was just thinking that I have been on the bench now for twelve years and I've never had a single complaint from a grandparent about not getting access to a child or not having parenting rights.

I don't know why that is. You say that you—

Senator Mabel DeWare: Well, we have to compliment you in Michigan.

Judge John Kirkendall: I've been reading your transcript, and I know that's been a concern of people who have appeared here. I'm just wondering why I've never had that problem.

Senator Mabel DeWare: Some of our grandparents have been totally cut off from access to their grandchildren. In several cases, it was because their daughter or son had passed away. They had been to the court and spent thousands and thousands of dollars trying to find a method by which they could see their grandchildren or have access to know even how they are. Maybe even they want to hear about how they're making out in the school system or want to contribute to their college education. This is all being denied.

Judge John Kirkendall: Under your present law, is it clear that grandparents have a right to come in and ask for those types of things?

Senator Mabel DeWare: I guess you'll have to ask one of my lawyer friends. I don't know that.

Senator Duncan Jessiman: Sorry, what was that?

Judge John Kirkendall: Well, I was just asking whether it was really a problem with the law or with the law not being enforced. What is the problem they're having?

Senator Duncan Jessiman: The grandparents?

Judge John Kirkendall: Yes.

Senator Duncan Jessiman: Well, the law as it presently exists says they have the right to apply under the Divorce Act. But before they apply, they have to appear before a court first in order to apply. So they have to take two bites of the apple, and it's costly.

We hope there will be an amendment to the act that will at least allow a grandparent the right to apply just as a parent could apply. It's then up to the judge. So they would have exactly the same rights.

In Quebec, one of our provinces, they actually have right in their act that a grandparent—they don't call it a grandparent, they call it the parents of the spouses—is to be considered as a person who should be given access.

Do you have anything in your act?

The Joint Chair (Mr. Roger Gallaway): It's not your turn to ask.

Senator Duncan Jessiman: I'm sorry. Well, I'm probably going to be next anyway.

The Joint Chair (Mr. Roger Gallaway): No, you're not next.

Senator Duncan Jessiman: Oh, I'm sorry about that. Well, it's supplementary anyway.

The Joint Chair (Mr. Roger Gallaway): No, I don't think it's supplementary. We're rather pressed for time, so I'd like to press on.

Senator DeWare, do you have another question?

• 1655

Senator Mabel DeWare: They may get back to that one again.

The Joint Chair (Mr. Roger Gallaway): Okay. Mrs. Finestone.

Mrs. Sheila Finestone (Mount Royal, Lib.): Well, I don't think it's an act, because the Divorce Act is federal jurisdiction.

Senator Duncan Jessiman: There are other acts.

A voice: Oh, oh.

The Joint Chair (Mr. Roger Gallaway): If I were you, I'd get a divorce myself.

Mrs. Sheila Finestone: I'm very glad you raised the grandparent issue, because I think that is one of the issues this committee will have to address in its report. It is a serious question. The question of access and the question of custody is a different question, and in a sense that would lead me to my first question.

There's been a lot of talk about the use of language, the connotation that's attached to and the long history around the words “custody” and “access”. We've been hearing a lot about joint parenting plans, family parenting plans. I guess you could use a rose of many different hues to find the right language.

I'm curious about a number of things. First, you pointed out that generally over half the cases that come resolve their problems, and it's the balance that get some form of mediation, conciliation, and some kind of parenting plan. In light of that, have you found the language to be an impediment, and should we consider changing the language per se while the actions are the same?

Judge John Kirkendall: It's a good question. That was a Gertrude Stein question, wasn't it, a rose is a rose is a rose?

Mrs. Sheila Finestone: I think that's right.

Judge John Kirkendall: We think you're on the right track by wanting to change the names.

I just took a mediation class to teach me how to be a mediator, because I'm trying to send people into mediation. So I thought, well, before I do that I ought to find out what it's all about. So I went to one.

One of the first lessons I was taught was that when you're sitting down with a family that is trying to resolve problems, if you want to get a real good fight going, start talking about custody. What you do is force one of the parties into a win situation and the other party into a lose situation.

So I think you're really on the right track by looking at that just a little differently, and in terms of plans, participation, and involvement of both parents. Because when you talk about custody, you really are talking about a winner and a loser. You're trying to avoid that, and I think that's good.

Mrs. Sheila Finestone: Well, talking about that, thank you very much. I think that's very helpful in clearing the air.

You talk about a joint parenting plan, which of course would include housing and rights in education, holiday time, and things like that, the whole plan of action, shall we say.

In Canada we have removed the question of child support through a different act, and a wholly different program based on province and place of location, whether it's urban or rural.

Does the working out of a joint parenting plan include the question of legal versus what I would call physical custody, and does it define physical? As a supplementary to that, where you're using joint custody as terminology, even if it's joint parenting, does that mean that you would take into consideration the age of the child when you're looking at whether it's legal or domiciled?

Judge John Kirkendall: Why don't you deal with that?

Prof. Thomas Darnton: Our joint custody act does specifically define joint custody as meaning one or both of the following: that the child shall reside alternately for specific periods with each of the parents; that the parents shall share decision-making authority as to the important decisions—

Mrs. Sheila Finestone: Excuse me, is that separate from your divorce act?

Prof. Thomas Darnton: We have what's called the Child Custody Act. It applies to all child custody issues that come up in the family court. This includes divorce, paternity, situations where.... I mean, those are the two primary ones. When I say paternity, it basically.... Whether the parents were married to each other at one time or they have never been married, the custody act would apply. So it is separate from the divorce act.

• 1700

Mrs. Sheila Finestone: But there is a series of definitions that leads to some clarity so that you could have commonality, irrespective of the judge who would be hearing the case and irrespective of the lawyers, who tend to meddle a little too much? You said that in the beginning—something like that.

Prof. Thomas Darnton: Yes. The best interests of the child test the judge referred to earlier is also found in the Child Custody Act, which is, again, not a part of the Divorce Act per se.

Mrs. Sheila Finestone: Would you be good enough to table those acts so we could look at them?

Judge John Kirkendall: Absolutely.

Prof. Thomas Darnton: Sure.

Mrs. Sheila Finestone: Thank you.

Could you do that as well with the manual you referred to in the presentation?

Judge John Kirkendall: Yes, I'll leave a copy for you today.

Ms. Carolyn Bennett (St. Paul's, Lib.): The bench manual.

Mrs. Sheila Finestone: The bench manuals? Okay. Was that what you called them, bench manuals?

Judge John Kirkendall: I call it a bench book.

Ms. Carolyn Bennett: Bench book.

Mrs. Sheila Finestone: Okay, the bench book. You have more than one, so if you would be good enough to table at least the different varieties of bench books you have, we'd love that.

Judge John Kirkendall: Oh, okay. I thought you had plenty to read on this committee, but I'll be happy to do it.

Mrs. Sheila Finestone: We would, but I think that might be an excellent guide, as I'm now going to ask Professor Darnton to continue. Thank you.

Prof. Thomas Darnton: I agree with the judge that the language is important. As a practising lawyer, particularly with a client who was not going to be the primary custodian, to talk with that client about visitation, which was the word we used, really denigrated the relationship.

I think that in general the legal system has assumed for many years that in a divorce case.... It has assumed the worst about families, and the language has been designed assuming that people are not going to be able to work out anything. If we change the assumption, we assume that people are going to be able to come up with some basic agreements, and we create that as an expectation, I think more people will be able to achieve that level of communication and cooperation. It won't be 100%. We'll still have those high-conflict, difficult cases where changing labels won't make any difference, but for many it will make a significant difference.

Assuming that people can and should come to a common understanding about how they're going to continue to parent their children after divorce is an important place to start as you're designing these kinds of systems. I think people are capable of it if they're given the right support and encouragement, rather than encouraged to think about it as plaintiff versus defendant.

Mrs. Sheila Finestone: Well, could I ask you, you were talking about, as you talk about and you talk to.... When does the talk with the child take place? How do you take the child into consideration in the course of the best interests of the child? Do you have these conversations if you do have such conversations? Depending on the age of the child, at what point are they in camera with the child, at what point are they with the parents, and who...? Is it the role of the friend of the court? Is it the role of the legal counsel who's in there? Is it the role of some form of mediator who's there? Who does it if you do it?

Prof. Thomas Darnton: It's done at several levels. The friend of the court at the casework interview stage will talk with older children, and there's no magic line as far as that's concerned. The conversations with children will happen primarily in situations where the parents are quite far apart in terms of their own presentations of the children's position.

Those interviews are done without the parents being present. The results of those communications are not shared in any direct kind of way with the parents or their attorneys. The results are shared with the judge, if the judge becomes involved in decision-making.

Mrs. Sheila Finestone: Do I understand that at no point are the parents made aware of what the child has said where the child may indicate who they wish to live with, versus how much they would like to see both parents? There's no communication between whoever met with that child, the friend of the court, and the parents?

Prof. Thomas Darnton: There is communication. The way it normally goes, and the way.... Well, it can be done either by the caseworker or by the referee. Normally it ends up being the referee who speaks with the parents and says “Our caseworker has spoken with your children. We know what their input is. This is our recommendation and we've taken their input into account.”

• 1705

My understanding from talking with caseworkers and with mental health professionals as well is that children are very reluctant to express themselves if they believe that what they say will get back to one or both of their parents.

Mrs. Sheila Finestone: Judge Kirkendall, you get the report, so I'd like to go from your step, which is very key and very interesting...and the terms “referee” and “mediator” and “friend of the court” are interesting for us too.

Now we're before you in the court; you have these reports being tabled in front of you. Are you therefore as the judge called upon to be like Solomon and express to the parents what the decision of the child is in looking at the parenting plan? Let's say the parenting plan does not include the wishes of the child that should be considered the best interests of the child. What do you do then?

Judge John Kirkendall: It's a very good question, which comes up with some regularity. Our Child Custody Act in the best interest factors indicates that one of the 13 factors the courts consider when deciding where the child should go in terms of primary possession and so on, the reasonable preference of the child—if the court considers the child to be of sufficient age to express a preference.

You have raised issues about procedure. How do we handle that when we want to determine how a child feels? And more particularly, let's say I make a decision based upon what a child has said to me and the other parent conceives that he or she has lost and decides they want to go to the court of appeals. The court of appeals doesn't know what the child said to me, because I won't tell anybody.

In our state the court of appeals has indicated that it's not necessary for us to reveal what a child said in confidence to the judge or to the friend of the court. However, I am required under the law if a child is of sufficient age, whatever that is, to express a preference, and we usually say that this.... If a child wants to talk to me and he or she is seven or eight years old, I still listen.

I also let a child know that merely because they expressed to me that they wish to live with one parent or the other doesn't mean that this will happen. I will take it into account, and I do that for a very good reason. I believe that's too big a weight on a child's shoulders to believe they're deciding this momentous issue by what they say to me. So I let them know by saying “You tell me what you think about all this. I'm interested in hearing what you have to say. I'll take it into account, but that may not be what I do.” So they don't feel so bad that they are the ones who are choosing between mom and dad. You know that is very difficult.

From the testimony that other people presented, this child wants mom and dad to get back together, and they don't want to make that decision. So yes, we talk to the child, we take it into account, and we don't tell mom and dad what the child said. We just say we took it into account because we don't think it's fair that dad will then come back and ask why did you tell the judge that, when you told me last week you wanted to live with me?

Mrs. Sheila Finestone: Mr. Chairman, I have a whole series of questions I'd love to ask, but I think my colleagues should get a chance, and I know our guests have to leave, so I will terminate there.

Thank you very much for coming. Thank you for tabling these manuals. I should also thank you for reading all the transcripts. You have been very helpful.

The Joint Chair (Mr. Roger Gallaway): Thank you.

Dr. Bennett.

Ms. Carolyn Bennett: I thank you as well; it's been very helpful.

I have been concerned through the hearings that the best interests of the child sometimes seem to be dealt with in a rather cursory or automatic way. We've also heard from some child advocates that seem to see their role as just saying out loud what the kid told them without feeling the necessity of figuring out why the kid is saying that.

I was interested firstly in the role of the child advocacy clinic at the University of Michigan Law School.

• 1710

I have an interest in the 90% that settle, because I think some of those settle because of a power differential. I would love to see some educational process such that we make sure the best interests of the child are always maintained there. That's going to be tough, because it's more invisible.

In the high-conflict ones I just have this instinct that it may be always the child who needs a voice. And shouldn't we also figure out if a child is saying that they never ever want to see a certain parent again, shouldn't all our bells and whistles go off? Shouldn't we actually be doing a formal assessment of why that is or isn't the case? Because it is then like a death. We would support a kid whose one parent died. Otherwise, the kid will end up on the couch in their twenties, wondering whether they made the right decision or not and why they were led to that decision.

So I want to know what the credentials or the disciplines involved are. How do we make sure that the voice of the children is heard in a really professional way? We've heard about bad assessments and we've heard about advocacy and we've heard about a lack of resources. In Ontario the Office of the Children's Lawyer can only take 60% of the referrals. So you wonder how the poor judges under these time constraints make sure they're doing what's in the best interests of the child.

Judge John Kirkendall: Perhaps I can talk about the best interests and perhaps Tom could talk about the resources.

In the book I'm going to give you to look at, the bench book guide, let me just give you an example. We've alluded to the fact that there are 13 factors the court and the friend of the court must take into account when making a determination of what's in the best interests of the child.

The very first factor is the love, affection, and other emotional ties existing between the parties involved and the child. That's a broad statement. So in our checklist we ask the court to look at these things: Who prepares the meals? Who's bonded with the child? When the child has a problem, to whom does the child speak? When the child has a triumph, to whom does the child speak? Who spends more hours each day with the child? What are the statements of the child indicative of bonding? What are the parents' relative abilities to separate the child's needs from their own needs? To whom does the child openly show signs of affection?

Those are all objectives under this one factor. There are 13 factors, and there are objective signs under each one. And that goes a long way in helping a court figure this out.

Mrs. Sheila Finestone: Does the child as well as the parent ask that, or does the judge ask that?

Judge John Kirkendall: No, the judge and the friend of the court ask these questions.

Mrs. Sheila Finestone: To both the parents and the child....

Judge John Kirkendall: These are the factors we're looking at. We don't necessarily ask these specific questions to anybody. We have a hearing, and during the hearing this is what we're looking for. We're watching as the testimony is being given to see who is going to be prevailing on each of these factors.

Mrs. Sheila Finestone: Thank you for that clarification.

Judge John Kirkendall: The attorneys also know what we're going to be looking at, because we give this to the lawyers so they ask the right questions.

Mrs. Sheila Finestone: Do you cram for the exam?

Ms. Carolyn Bennett: You have to know what grade the kid is in.

Prof. Thomas Darnton: One of the really critical skills for working in this area, whether you're a lawyer or a caseworker or a judge, is interviewing skills and knowing when to ask the open-ended question and when to start to focus in on things.

Training and experience go a lot further than formal education as far as that's concerned. That's one of the reasons why it's reasonable to expect that you can get quality work even in places like the upper peninsula of Michigan, where you may not have a lot of degrees but where you have people who have been working in systems and have an understanding of how to get information.

• 1715

As to the role of the child advocacy clinic, most of our work is actually representing children in the abuse and neglect docket, which is a different set of circumstances from what you're looking at here. We do get appointed occasionally in cases where there are high-conflict divorces going on and the judge in a particular case wants to have some advocacy on behalf of the children. When we get involved in those—

Ms. Carolyn Bennett: Do you get paid for it?

Prof. Thomas Darnton: That's a service to the court. The child advocacy clinic does not charge the court for its services.

I have also performed a similar role as a guardian ad litem. The first time, I did it on a pro bono basis. That was about 15 years ago. Since then I've only been willing to do it if there was some compensation available. These end up, then, being families that are at least middle class, if not higher on the economic ladder, who can afford that kind of service.

But I think even in a middle-class high-conflict family, if you have some funds that might be used for college education or might be used to be sure that the process at the time of the divorce is one that takes the children's needs into account, you're probably better off investing in that divorce process, because the college money isn't going to be any good if the kid is not functional.

With these high-conflict cases, we really are talking about either participating in a process that does further damage to the children or in a process where we try to salvage them from the situation in which we find them when they come into the system. I think it's important to do the latter.

Judge John Kirkendall: If I could interrupt you for a second, I want to make a point about appointing a guardian ad litem or an attorney in every case for kids.

You hit on a really good point about having children represented in high-conflict cases. If I were drafting the legislation myself, because of the experience I've had I would make it possible for the judge to make these appointments, but I would not make it mandatory. Let me tell you why.

You have children, and you know children are not unknown to manipulate parents during the course of a divorce and—

Ms. Carolyn Bennett: Oh, we can.

Judge John Kirkendall: Yes, and can you imagine, if all the kids had their own attorneys, this would give them certain kinds of power in a divorce case that we may not feel belongs in every divorce case. If I were in a divorce case, I would hate to have a child of mine saying “I'm going to have my lawyer talk to your lawyer”.

So it seems to me that we don't want to make it mandatory, but we may want to give the judge the opportunity to make the appointment in the proper circumstances. That's the point I wanted to make.

Prof. Thomas Darnton: In the last two situations I've been involved with, in one I was actually the attorney for children who were orphaned in a murder-suicide and the extended families continued the custody battle. I certainly think they needed attorneys in that situation.

In another situation—and this was a case I had in the clinic—we had a divorce that was happening after the father was sent to prison for sexually abusing not his children but neighbourhood children, but there was some suspicion that he'd been abusing his own children as well. The issue came up about having contact with the father's extended family and visiting the father, who was in prison. Again, that's a situation where I think it made sense that the children had their own advocate.

By and large, I think you have to pick and choose carefully, both because it's expensive and because adding to the number of litigants to a litigation is rarely something that's going to simplify the litigation.

Ms. Carolyn Bennett: High-conflict divorce seems to be abusive to kids, if we were actually to describe what's happening. But what I think was interesting last week, when we were seeing the expert in international abduction and those sorts of things, was in some ways we also see the abuse of denying access, which may not be over a border, but it seems also abusive in a way that, because they haven't crossed a border, is more difficult.

• 1720

Would you have any opinions on this, or do you have a system involved in that kind of abuse of denying access or prolonging a high-conflict divorce?

Judge John Kirkendall: I think you're getting at the question the senator was asking: Can we force people to follow the access arrangements or the parenting-time arrangements? The answer is yes, we can, and the answer is jail time if it gets down to that.

Children need to know their parents. Children need to visit their parents. You point out that if you deny that, it could be abuse to the child. I agree with that wholeheartedly. I think if we're going to have a system and we're going to say that kids have a right to see their parents, we can't let one parent thwart that right. That's just not possible.

Ms. Carolyn Bennett: I guess what I'm asking is rather than putting them in jail.... We have a bad thing in terms of the Children's Aid—

Judge John Kirkendall: Yes.

Ms. Carolyn Bennett: The way people view Children's Aid, I think, is always that they're going to come and take the kids away. Is there not a way with this sort of abuse that somebody could be appointed to look after the best interests of the children, who actually is in a child welfare kind of role, and where if the child isn't being returned at the right time, there's a third party the kid can call if they don't feel safe because one parent is drunk or whatever? I just think that we have to do it in a more care-giving kind of way rather than a punitive and criminal way.

Prof. Thomas Darnton: There's a good deal of work that's being done now. I don't think anything really definitive has come out, but the model.... In Michigan, we talk about it as a “special master”, and that term has meaning and equitable jurisprudence that goes back to when there was no civilization in North America whatsoever. On the west coast, it's referred to as “parenting coordinator”. It is a person normally with mental-health training, who is empowered, sometimes by private agreement and sometimes by court order, with the ability to make decisions—day-to-day, week-to-week decisions about the parenting arrangement.

That is one of the devices that's available for dealing with high-conflict families. You essentially take away from them the power to make decisions, and create a structure in which they have to live. Even within high-conflict families there are degrees, and I think all but the worst, the most conflicted families, can function with these kinds of interventions. I don't think it requires the creation of a new agency in order to come up with the people that do this. People with mediation training can work well with this, although this is not mediation.

Judge John Kirkendall: The question is very, very good, because what we're getting back to is something that was talked about earlier, and that is the resources that are available to a court when you're dealing with high-conflict cases. When you're drawing up legislation to deal with that, I think that's just one more factor to bear in mind—to make sure that your legislation doesn't preclude a judge from being able to engage in creative solutions to difficult problems.

Ms. Carolyn Bennett: Thank you.

Prof. Thomas Darnton: I even forget the question now, but I wanted to mention that we have two educational programs for parties in Washtenaw County, which have been very helpful, I think, in reducing the amount of conflict that goes on. We have a program called the SMILE program, which stands for Start Making It Liveable for Everyone. I used to think that was a cute label until I got involved in this murder-suicide case, and then it took on a very different meaning.

Judge John Kirkendall: They know about the SMILE program—you have talked about it, haven't you? I see it in your minutes.

Prof. Thomas Darnton: That kind of program can be very helpful to people who are traumatized by their own divorce and are looking for guidelines for how to behave.

We also have a program that we use to introduce mediation in Washtenaw County, in which we try to spell out for people the various types of resolutions that are available, from litigation, as the most conflicted and most expensive, down to what we call kitchen table negotiations, which are the least expensive and are done without benefit of any professional assistance.

• 1725

Both of these programs I think go a long way toward giving people the information they need to make decisions for themselves. I think most people involved in divorce are very unhappy and very upset, but they're also looking for answers and ways out. If you can provide them with information, you can then expect them, in most cases, to behave like reasonable human beings.

Ms. Carolyn Bennett: Thank you.

The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.

Senator Duncan Jessiman: Thanks, Mr. Chairman.

It was only on January 1, 1998, that the family division became part of the Michigan circuit court. How many judges would be in the Michigan circuit court for all of Michigan?

Judge John Kirkendall: Well, now, I'm glad this isn't a test, because I'm not sure I'd do very well on that one.

In the state of Michigan we have 83 circuits, and I would say we have an average of three judges...so I'd say around 250.

Senator Duncan Jessiman: Really.

In terms of the family division itself, what part would that play, or what percentage would you have?

Judge John Kirkendall: We are struggling with that issue. The way we have decided to resolve that is to state that each county needs to figure out what its needs are in the family division as opposed to the civil division and the criminal division, and then it is to draw up a plan and submit it to the Supreme Court. Based upon their caseload in the divorce area and the criminal area and the civil area, their plan will be reviewed and either approved or not approved. It's being handled on a county-by-county basis.

In our county we have fourteen judges in total, and out of that number we have three serving in the family division.

Senator Duncan Jessiman: Do they serve full time in family work?

Judge John Kirkendall: Yes, they do serve full time in the family division.

Senator Duncan Jessiman: All right.

I'd like to get back to this access and refusal of giving. We changed our law recently, as you know from reading the testimony, to say that if a person didn't pay the maintenance he was supposed to pay, not only could he be in contempt of court and all the rest of these things but you could garnish, you could take his passport away, you could take his driver's licence away, you could take his fishing licence away, I think—

Judge John Kirkendall: Not the fishing licence!

Senator Duncan Jessiman: —and various other things.

Now, we had before us a number of non-custodial parents who said “Fine. That's all right. If we don't pay, they certainly should throw the book at us.” But they came along and said “You know, it should work in reverse—if we pay regularly but they refuse to give us access to the children.” Then one of the other groups, custodial parents' representatives, came before us and said “The problem isn't the way you're explaining it. It's really that those non-custodial parents won't come and pick up their children when they do have access.”

So let's say both. Should there be something we should do, first, in respect to the custodial parent who refuses to give access, and second, the non-custodial parent who has access but doesn't come for them? What do you suggest?

I know in your legislation there's provision for a social worker who makes up the time. If you didn't give access last weekend, then maybe the non-custodial parent would get the next two weekends.

I guess those are the two questions I'd like answered.

Judge John Kirkendall: I have read this issue that's come up before you, and you have debated it very well.

I believe you'll be introducing a really unnecessary complication if you tie the parenting time in any way with your support. I think the two are separate issues.

Senator Duncan Jessiman: That's agreed to.

Judge John Kirkendall: And I agree with that conclusion. I do not believe you should penalize a parent who refuses to give visitation by cancelling the support obligation to that parent. That's what you've already agreed to, I presume.

• 1730

Senator Duncan Jessiman: No. There are two arguments. One is that it's the non-custodial parent who says I'm supposed to get next weekend, but when I go to pick up the child, the child isn't there. Sorry, he went off with somebody else or he's not here.

Judge John Kirkendall: That does not affect support, and it should not.

Senator Duncan Jessiman: But I understand that you have social workers they seem to work with. I assume the non-custodial parent is male and the custodial parent is female, because we're told that's what happens 85% of the time.

So in your case, as I understand it, the man, instead of the custodial parent—judge, you said that if she persists in this we are going to put her in jail. That could happen and has happened in Canada, but they committed contempt of court 42 times before they were put in jail.

So I don't think that's the answer, but you seem to have come up with an answer. I don't know how you do it exactly. You say that if you don't give him up this weekend, then he gets the next two weekends or whatever that person thinks is reasonable. Do you order that in some cases, or is that usually done by the social worker?

Judge John Kirkendall: Often those are settled in the front of the court. We often don't see those cases come before the judge, and I think that is because they know what the judge is going to do. They know that visitation and parenting time and collection of child support is serious business. If you don't pay your child support, you go to jail, and if you don't grant the visitation you're required to, you should go to jail.

There is no reason not to follow the court orders. The kids deserve to see both parents, and if one parent is thwarting that arrangement, something needs to happen.

I agree with you that's not a perfect solution to the problem. We have a parent who's now spending some time in jail when they could be with these children. On the other hand, we can be as creative as those parents who are denying visitation. We can put them in jail on the weekends when they're with their father, for example.

We can deal with that situation, and they know it. So they're not coming into court; they're agreeing to what the friend of the court says to do. I think judges need to be firm.

Senator Duncan Jessiman: So your recommendation is that if our judges make clear to all the people separating and divorcing that they're going to have to comply or they're going to get the book thrown at them....

Judge John Kirkendall: Exactly. This is not a court suggestion, it's a court order. You need to follow it.

Senator Duncan Jessiman: Right.

Prof. Thomas Darnton: We have a specific piece of legislation that addresses this very question, and there is a list of options that are available. The beginning of this section says:

If the court finds that either parent has violated a parenting-time order, the court shall find that parent in contempt and may do one or more of the following...

Then there is list of sanctions, one of which is the suspension of licences, either driver's licences or occupational licences. Jail time is part of it. Changing the arrangement is part of it. So there are a number of options. The structure is there, and I agree with the judge that consistent enforcement is key to making any of these things work.

Senator Duncan Jessiman: I have one last question.

In your courts, priority is given to custody and access cases before the court. They're supposed to come before the court within 56 days. One of your eminent people, the chair of the family law section of the Michigan bar, Keldon Scott—are you familiar with him?

Judge John Kirkendall: Yes.

Senator Duncan Jessiman: He said custody litigation is rarely if ever addressed within the 56 days. The problem, as you probably know, is that 56 days is almost two months. If it takes longer than that, then that one parent—whomever that parent may be—who has custody has the continuation of that child for a period of time.

If it's going to be three, four, or five months or whatever, by the time they get into court one of the things the judge takes into account is the stability the child has had, the status quo. We don't want to get into that kind of situation. It has to be fair to both sides. How do we do that?

Judge John Kirkendall: Absolutely. I couldn't agree with you more.

• 1735

One of the things you have learned about from people who are experts in child development is that one of the worst things a court or any of us can do is to disrupt a child's present environment unnecessarily. So when somebody comes to court and asks for a change of any sort, that is a yellow flag for us. We don't want to destroy a child's environment without knowing a lot about the situation. So we refer these cases to the friend of the court, who may have to get somebody else involved, and then we may have to wait for a report.

The Supreme Court and court of appeals have indicated to us in Michigan that if we don't handle one of these cases within the prescribed time limit, that is not a violation that's going to interfere with the enforceability of our orders. It's merely a suggestion of good practice, of trying to get these cases settled in a priority way. It's the Supreme Court's way, the Supreme Court's order, that we do these cases within that period of time. I think it's merely a way of saying that child custody cases are extremely important cases and judges should give those priority, and we do that.

It's just that it's not always possible to get all of the experts. Let's say we get a complaint of sexual abuse. That makes all the flags go up. We don't want to react to that until we're certain we have a situation we should react to. In the meantime, we may put into place safeguards such as structured visitation, supervised visitation, and that sort of thing. But we don't move speedily, and I don't think it's in anybody's best interest for the courts, merely upon the filing of a petition, to get something done quickly at the risk of doing something improperly.

So you point out the difficulties, but I think a judge is put in the position of having to do a balancing act. What we have to keep in mind throughout all of this—and I know that's what you're doing—is the best interests of this child. We have one parent who wants to change the arrangement and we have to ask ourselves whether it is in the best interests of that child to move quickly. It may not be.

Senator Duncan Jessiman: I guess they can, even within the 56 days, apply to court for access on some basis?

Judge John Kirkendall: Absolutely. That is one thing we routinely insist upon—both parents having parenting arrangements, visitation and that sort of thing with the child.

Senator Duncan Jessiman: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Thank you, Senator Jessiman.

On behalf of all the members of this committee, I want to thank you for coming here today. A panel of Canadian judges is going to appear before this committee in a short period of time. In particular, Judge Kirkendall, you've given us a lot of ideas. I think the meeting is going to be much livelier when we meet with them as a result of your presence here today. So we thank you for that. This has been a most productive meeting. We certainly have seen the contrasts, and we appreciate your contribution to the work of this committee. Thank you both for coming here. Both of you have added a lot to our perspective on this.

We're going to suspend for twenty minutes.

• 1739

• 1811

The Joint Chair (Senator Landon Pearson): I'd like to, on behalf of the committee, welcome the witnesses this evening.

We have, from Family Mediation Canada, Michael Guravich, president, along with Orysia Kostiuk. From Family Service Canada we have Maggie Fietz and Kathleen Stephenson. As individuals we have Jeanne Byron, a lawyer; and Diana Carr, from the local Ottawa parenting program, who is accompanied by Dr. Margaret DeCorte, a psychologist.

Mr. Guravich, are you going to start?

Mr. Michael Guravich (President, Family Mediation Canada): Yes, I will, thank you. Thank you for this opportunity.

Family Mediation Canada is an organization of over 1,200 members, most of whom are mediators. In 1997, with the assistance of Health Canada's child and youth division, Family Mediation Canada published an inventory of parent education programs in Canada, a copy of which has already been distributed to you.

With the assistance and financial support of Justice Canada, the British Columbia Ministry of the Attorney General, and the Law Foundation of the Northwest Territories, we will have in place by January 1999 a national certification program for family mediators. An outline of our pilot certification program has also been distributed to you.

Our experience and credentials are diverse. Our members number lawyers, judges, social workers, psychologists, other mental health professionals, and many others. We think our collective experience qualifies us to say something about children and custody and access.

We agree that a lot of people are having problems with custody and access. It's a major reason why there is family mediation.

We don't think the answer is simple or that the solutions are easy. We believe that an appropriate framework for action should include the following four points: 1) legislation that continues to emphasize the best interests of children; 2) mandatory and early parent education for separating parents; 3) court-connected intake and mediation services that would be available to all; and 4) more and better research to help us understand what we're dealing with and what we should be doing.

The best interests of children is still preferable to anything else. It is still the way to go. It is a doctrine that should be maintained—indeed, enhanced.

Legislation could be further enhanced to help courts and the people with guidelines about what factors and circumstances contribute to the best interests of children. We could also use more guidelines in the legislation about what factors and circumstances are not in the best interests of children.

On mandatory early parent education, there is already a tremendous grassroots movement under way. Parent education programs for post-separation parenting are springing up all over—hundreds of them. It's because more and more people are realizing we have not given separating parents adequate opportunities to learn how to parent after separation. It has always been taken for granted that if you know how to parent, that's all you need to know.

Parenting in a collaborative, cooperative, and constructive way with someone you used to love and respect is quite different. It requires self-discipline. It requires that you know how to communicate effectively within this context. It requires that you understand what your children are experiencing within this context.

• 1715

We think mandatory parent education, the earlier the better, would go a long way towards addressing these information gaps.

Court-connected services for parents in litigation: We believe there is a need for more court-connected services of the type found in unified family courts. These courts generally have a social arm consisting of personnel providing counselling, mediation and evaluation services, among others. Safe, voluntary mediation services should be available to everyone.

I personally work in such a setting, where we provide not only mediation services but also counselling for those who need help adjusting to the changes brought about by the end of their spousal relationship.

Mediation has helped many former couples not only to reach agreements in areas of custody and access when they first separate. It's also a way to reach further agreements whenever necessary, to adjust access arrangements when circumstances change—for example, as children get older—or to change legal custody agreements when a child goes to live with the other parent. It enables parents to achieve their own agreements while avoiding the traumas of litigation.

Perhaps most important is research. We need to break free of the myths and misinformation surrounding divorce. We need to know more about its effects on children and parenting. We need to be sure we are doing the right things. There is too much at stake. Children are already suffering, and many more will continue to do so. More research is needed so that we can devise policies and programs that will work in the best interest of children.

If adequate research is not done, our policies and programs will be developed on the basis of beliefs, rather than knowledge; will be developed on the basis of special interest, rather than the best interest; will be developed on the basis of popular sentiment, rather than what really works.

If the children who need us to get this right are not served as they deserve to be, then we will get the children we deserve—children who do poorly emotionally and academically, whose relationships in adulthood are doomed to repeat the mistakes made by their parents, children who will draw disproportionate attention from the criminal justice system, who will draw disproportionately upon all of our resources—in short, who won't achieve their true potential, and we will fail to achieve our potential as a society and as a nation.

Thank you.

Mrs. Sheila Finestone: Madam Chair, pardon me, but I'd just like to have repeated one line that was just used by our witness.

The Joint Chair (Senator Landon Pearson): Yes.

Mrs. Sheila Finestone: You used a terminology that caught my attention and that I liked. You talked about the difference between best interest and what interest for the child? Yes, I am talking to you, sir.

Mr. Michael Guravich: I'm not hearing the question completely, ma'am.

Mrs. Sheila Finestone: The question relates to the last paragraph of your presentation, in which you talked to the fact that if we have proper research we would be able to determine not only what is in the best interests of the child, but in the something interests of the child. I want the word that you used, pleased.

Ms. Orysia Kostiuk (Family Mediation Canada): Special interest?

Mrs. Sheila Finestone: Was the word “special” interest of the child?

Mr. Michael Guravich: The very last paragraph?

Mrs. Sheila Finestone: Yes, I believe so.

Was that what he said?

Mr. Michael Guravich: I can't find any reference to best interest of the children in my last paragraph, I'm afraid. It must have been earlier.

Mrs. Sheila Finestone: I guess we'll find it in the transcripts. I must tell you that there has been quite a discussion as to whether the best interest of the child is the best wording to use, and if that's what we really mean. You used something that triggered that thought to me, and I thought: there's the right word. So thank you; we'll read your presentation much more carefully. Thank you.

Mr. Michael Guravich: I'm sorry, I wish I could have answered your question.

A voice: Keep looking.

Mrs. Sheila Finestone: It's quite all right.

Thank you, Madam Chair.

The Joint Chair (Senator Landon Pearson): Ms. Kostiuk.

• 1820

Ms. Orysia Kostiuk: I've actually brought a video, and with your permission....

The Joint Chair (Senator Landon Pearson): I would need to ask permission. It's a three-minute video, and it's only in English.

Ms. Orysia Kostiuk: We produced this video in Manitoba. It is utilized in the Manitoba program entitled For the Sake of the Children. This video has been designed especially to work with families where there are higher levels of conflict. I thought it might be helpful for you to see it.

The Joint Chair (Senator Landon Pearson): Thank you.

Ms. Orysia Kostiuk: Currently it is only in English. It's hot off the press, if you call it that in video.

The Joint Chair (Senator Landon Pearson): Okay, thank you.

[Editor's Note: Video presentation]

• 1825

Ms. Orysia Kostiuk: For the Sake of the Children was developed in 1995.

In delineating the goals, I came up with 22 umbrella goals, 41 detailed learning goals for family relations issues, and approximately 20 goals in terms of the things that people needed to know, basics with respect to legal. I'm going to try to delineate, in two minutes or less, what I think are the most salient objectives of any short-term information-focused parent education program.

First, I think the parents need to feel that they themselves are understood before they in turn can understand anyone else, and I believe that includes their children, and these programs must address these issues.

There needs to be an understanding of the effect of prolonged exposure to high levels of conflict on children, and on all of the other family members as well, because not only is it difficult for children but it also places the type of stress on parents that then diminishes their own personal life and their parenting capacity. However, we also need to acknowledge that there are different levels of conflict. There are lower levels and there are higher, and we must not treat all of them equally.

The impact on children involved in the parental conflict, the effect on children where they are being asked to be the messenger or the negotiator, the therapist, where they become the bargaining chip, the family accountant, or the sponge absorbing all the opinions of each parent under the guise of “I'm just being honest”....

• 1830

While we're telling them what things they want to stay away from, we also need to talk about what are desirable behaviours and outcomes and how they can positively talk with their children about the separation and what occurred, how to answer these questions, and how to feel that even if the other parent is not working with them and the other parent is doing things that are not helpful to them, they can in fact still assist the child by doing “the right thing”. One parent doing the right thing is better than both doing what will not be helpful to them, and there are many things parents can do to ensure the child is not hurt by the process.

Children need to have a healthy relationship with both parents, the key word being “healthy”. The relationship is truly the right of the child, and it's the responsibility of the parent to ensure it is a healthy relationship.

The children's various needs and abilities based on their developmental stages, as well as indicators of distress and risk at the various stages, need to be delineated, as does the corollary issue of indicators of distress and risk for adults.

Finally, and perhaps of equal or more importance, is this issue of delineating a spectrum of dispute resolution possibilities, everything from the need to use a lawyer from the beginning and at times to go through to court, where in fact you have had such high levels of conflict and perhaps even abuse within the relationship that any type of direct discussion and negotiation would put the family at risk....

Although I come here with both hats on, as I said earlier—the project coordinator of the Manitoba parent ed project and a mediator—we clearly know mediation is not for everyone and that we should not be proposing it to everyone.

As the program in Manitoba delineates, there are programs for parents who are experiencing lower levels of conflict and programs for those who are experiencing higher levels of conflict. For us to be proponents in a wholesale way of a high-contact, cooperative, joint parenting approach in all situations is inappropriate in that we could put families at risk. Therefore we need programs that differentiate between the different types of communication and decision-making required.

With my Family Mediation Canada hat—

The Joint Chair (Senator Landon Pearson): Could you come to the end, please? We have the whole other set to hear from, so....

Ms. Orysia Kostiuk: Okay. Could I just say this one sentence?

As a Family Mediation Canada representative, I do truly believe we need research in this field to find out which programs are most effective, and we need to have comparatives, because that's not available either in America or in Canada, for there to be any kind of comparative study. This has not been done, and we are hopeful we will be able to do that.

Thank you very much.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Now, from Family Service Canada, we have Maggie Fietz.

Ms. Maggie Fietz (Executive Director, Family Service Canada): Thank you for giving us this opportunity to emphasize some of the concerns of the network of family-serving agencies across Canada.

We have distributed a written brief, but I'm not sure whether it was available in French or not. Certainly we also have some other written material about Family Service Canada.

Mrs. Sheila Finestone: We don't have your brief. It's in the process of being translated.

Ms. Maggie Fietz: Okay.

One of the first comments I want to make on behalf of the network is in terms of the language used in this area. The family service agencies have a great deal of difficulty. While they certainly understand that we are dealing with a legislative issue and that it is a legal matter in terms of custody, access, and visiting rights, these are also terms used in prisons and detention centres. “Awarding custody” makes it sound to the child as if the child is a prize to be somehow awarded to one parent rather than to the other, or as if they're an object that gets placed with one and not placed with another. These terms become very difficult for families and inappropriate in many ways.

We'd prefer to rename even your committee to the Special Joint Committee on Parenting After Separation and Divorce. It's important that we look at the language and try to see how we can find other terminology.

• 1835

Family Service Canada's network of over a hundred agencies across Canada is working with thousands of Canadians who are struggling with the impact of divorce. Approximately 60% of the clients who are seen in the general counselling programs are separated, in the process of divorcing, are in blended families, or are dealing with their own family members who have been separated or divorced. And we do know that parents want to do what is best for their children; however, the impact and implications of divorce often prevent parents from behaving in the best interests of their children.

The issue of domestic violence and abuse is a critical factor in how parenting can continue. Both experience and research has demonstrated that children need to have parenting from both birth parents, the mothers and the fathers. Our work certainly tells us that the primary focus must be on the best interests of a child. However, defining that is one of the complicated issues and it is very different, as has been said by Family Mediation Canada as well, and it has to be done on an individual-by-individual basis.

We believe that the secondary focus is on the family's rights and each parent's rights. And in the case of where there is a known abuser where the child wants contact with the parent who is the known abuser, we know that we have to find a way, both through legislation and through community support services, to allow parenting to continue while ensuring the safety of the child—and that has to be paramount—and by trying to remove opportunities for conflict between the two adults involved. We know that there are certainly methods in terms of supervised time together—I haven't used the word “access”—at a neutral setting, and that parenting education is one of the major ways parents can learn how to set up parenting that is safe for the child and a meaningful relationship.

Certainly we agree with Family Mediation Canada that high-conflict divorcing couples require very skilled assistance, which mandatory parent information sessions are not adequate to cover, and we must find other ways to ensure that for the high-conflict divorcing couples the child's needs are really addressed.

We also really are supporting that there be mandatory information sessions. These are an excellent opportunity for ensuring that all parents are aware of the legal, financial, and social implications of divorce and of the benefits and availability of parenting education programs that will allow each parent to explore and understand their own responses to these significant changes in their lives and in their children's lives.

When parenting after separation and divorce is done on the basis of what best contributes to a healthy child development, the negative impact of divorce is minimized for all concerned. We know that effective parenting education in a variety of forms, in a variety of models, with trained facilitators and proven models, will help this issue and will give the children of divorcing and separating parents a much better opportunity to grow and develop the way their parents want them to.

Kathleen is going to address the project we've just completed.

Ms. Kathleen Stephenson (Researcher, Family Service Canada): I'm picking up on the phrase in Maggie's last sentence about trained facilitators providing parenting education.

For the last several months Family Service Canada has been doing a bit of consultation across the country and working collaboratively with Family Mediation Canada, I might add, to develop a protocol, a model, a curriculum for enhancing the skills of the facilitators and educators who are providing the kinds of parenting education programs across the country that I think we would probably all like to see in place for parents who are separating and divorced.

• 1840

We have consulted with the member agencies of Family Service Canada, with a number of experts in the field of family education, as well as separation and divorce, and have developed what we think will be an effective model for improving the skills of a group of leaders, a group of facilitators, who can then provide this kind of parenting education.

The needs of parents who are separating and divorcing are somewhat different from—as I'm sure you'll appreciate—the needs of lots of other parents. Therefore, because of the high emotion, because of the very serious period of transition the family is going through, because there are legal implications, people who are leading these courses need to be very knowledgeable and specially skilled.

We have identified behaviours, which were quite explicitly presented in the video we just saw, that need to change. We have focused in on particular skills that parents need. I think that we above all want these parents to see their situation as normal, not to feel stigmatized. Divorce is normal, but as Maggie said, we can do it better, and parenting education is one of the strategies for making sure that we do it better, and enhancing the skills of the people who are leading those programs is one action that Family Service Canada is taking at this time.

We hope and trust that you will, within your mandate and particular jurisdiction, be able to support this initiative. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Ms. Byron, you were going to speak to the Alberta parenting plan. I think we're all interested to hear that, because we heard about it when we were there.

Ms. Jeanne Byron (Individual Presentation): Thank you very much.

I'd like to start off by briefly giving you some of my background, because it certainly will colour and be the context for which I will respond to any of your questions. It was certainly the context in which I worked on that program. I then do have some brief recommendations that I'd like to mention and then give you an overview of the parent education program in Alberta.

Professionally I'm a lawyer. My work, though, is fairly non-traditional: I do mediation and legal education. Most of my mediation is family-related divorce types of mediation, often with high-conflict families.

On a personal basis—and I share this with some discomfort, but I hope it helps—I'm a child of divorce. I've been adopted. I have a stepmother, stepfather, brothers, sisters, a half-brother and stepsisters. I am divorced. It was a very acrimonious divorce. And I've remarried someone who also went through an acrimonious divorce. So I have children and I have stepchildren. As far as I know, I don't have grandchildren. So it's almost a been there, done that, but I just didn't get the T-shirt.

That's the context in which I approached developing materials in Alberta. They did have a two- to three-hour program; it was fairly informal and dealt with the emotional and psychological aspects of what parents are going through, as well as what their children are going through. It was identified that there was a need to expand that course, add a legal component to it and some real communication skill development, as well as information on mediation and other options for conflict resolution. And that's what my job was, to develop that material.

My recommendations will echo some of what you've already heard here, so I'll be very brief. I do believe that parent education should be mandatory and offered as quickly as possible. The downside is that for many parents, when parent education is offered is probably the time they are least able to deal with it and to make it connect for them. I think the programs need to be court-related, although not necessarily provided by the court. I think the content has to deal with the emotional and psychological aspects of separation and divorce on anyone and everyone in the family. There needs to be some legal content. What is the legal process? What are the obligations under the law? What does the terminology mean in day-to-day use as well as in the courts?

• 1845

In parent education programs there needs to be a full discussion on what are the other options available. I don't like to use the language either, but what does custody mean every day? How does that work? What are some of the options? Is there only one definition or are there many definitions?

Whenever possible, and sometimes time is a problem, I think there needs to be some skill development—maybe not role playing, but actually talking about how people could deal with situations differently.

One of the other recommendations I have goes beyond parent education for people who are parents. I think by the time they get to that stage—and Michael made a comment that we assume if people know how to parent, they will be able to parent after separation. I think that's a huge assumption. I think a lot of folks end up being parents and haven't got the faintest idea how to parent. That is sometimes one of the reasons why they get a divorce. Parenting is not easy, and I think there needs to be education around parenting and what happens in a separation or divorce long before people get to be parents. It needs to be much earlier.

I think the whole arena of skill development in communication and conflict resolution should be something that is happening in our school system as part of the regular curriculum, which is beyond the scope of this committee. I strongly believe in that.

I was going to show you a clip from the Alberta video, but I'm not going to because it's so similar to what Orysia showed you. But what I'd like to ask you to think about is the moment when mom and dad slammed the phone down. At that moment in our program we pause and say, okay, what happened there. We have a real discussion about what happened for the child as well as mom and dad, and then some discussion—sometimes you have to help it along—about what the options could be. How else could those parents have dealt with that situation?

Then we go into the second half of the clip, which lays out one way it could have been resolved, or how the parents could have dealt with it differently.

By seeing those images on videotape, people can start to visualize and imagine themselves doing things differently.

My first career in life was as a school teacher. I taught elementary school. I've done adult education now for 20 years. Someone once mentioned to me that teaching children was like filling a void, just filling up the glass, and that teaching adults was getting them to look at things differently, based on the knowledge they already had. I think parent education is a bit of both, because sometimes there's a huge void; there's just no knowledge. The big part is taking a look at their situation and the relationship with the other parent and the child and looking at it differently; looking at it in a more healthy, positive way for all of them and looking at the parenting as separate from the husband and wife relationship, which is now ending or has ended.

Probably one of the most difficult things to get parents to really appreciate and understand is that battle with the other spouse has to be kept over there and the job of parenting is front and centre when they're talking to or dealing with each other, and to keep asking themselves, what's the parenting issue here? What's happening and what do we have to make happen for the child?

I think Kathleen mentioned that divorce is fairly normal in Alberta, and I think the statistics are fairly common across the country. Over half of the marriages in Alberta end in divorce and over 60% of the divorces involve kids. So it's not a unique situation. My kids come from a divorced family and I would say at least half of their friends do. It's not unique. But there's still a lot of stigma attached to it, for children as well as for parents.

My belief is that divorce causes damage to kids no matter how well it's handled. I just believe that. I have not yet come across a situation, even in the best of situations, where there hasn't been some damage caused. Parents, however, are in a position to minimize that damage, but they have to recognize what it is they're doing that's causing the damage. They have to want to change that. They have to understand what is happening for their children and they have to be aware of what the options are. Some of them just don't know what else to do; they're reacting out of anger, resentment, hurt, guilt, and pain, and they just don't know what other options they have. Once they understand that, they're almost always willing to take a look and try something else. They can see the pain it's causing their children.

• 1850

I think parent education programs can go a long way toward sensitizing parents to their children's needs as well as their own needs. It can provide some options for them, and in some cases, it can provide some opportunities to learn new skills. Parents do make the ultimate choice about their behaviour and how they're going to parent. Parent education can show them some options.

I just want to briefly touch on content, which has been mentioned already. I think mediation is something that has to be introduced as one of many conflict-resolution options, but they really have to work with people. They should see themselves with that other person—they probably would just as soon not sit in the same room with them—sitting down with a mediator and actually working something through and coming up with a good solution. In parent education, instructors that are well trained and well qualified can help them actually imagine that happening.

In our experience in the Alberta program, we had two instructors. One was always from a mental health profession and one was a lawyer. Both were trained in mediation. One was a man and one was a woman. That worked very effectively.

What I found most effective though was when the lawyer was a non-practising lawyer. Sometimes lawyers got too caught up in the battle—this is what we're trained to do—and didn't focus well enough on just laying out what the law says and what the obligations were.

I think there needs to be a lot of support besides parent education from the legal community often more than anything else. That's because when people find themselves in this battle with their soon to be ex-spouse, they go to see a lawyer quite often.

Although I know lawyers are required to mention mediation, I think it has to be more than that, I think it has to be a lot more than that.

I've had lawyers—this is not all lawyers—tell me that they sometimes don't like to send clients to mediation because it means a loss of business. I find that shocking, but at least they're honest. I think there needs to be education for lawyers and people working in the judicial system as well as for parents to be as well as people who are already parents.

In conclusion, I'd just like to read you a couple of quotes that came out of the evaluations from the pilot project in Edmonton. These are things that people said that I think really sum it up quite well.

This is the first one:

I'm leaving with ten specific points I need to work on to improve my parenting and my parenting relationship with my ex.

I particularly like this one:

I was really ticked off that my lawyer told me I had to take this course, so I came with somewhat of an attitude. Was I ever glad I came. It sure made me open my eyes to some things. Actually, I'm going to tell my ex about it and maybe he'll come too.

Here's the last one:

Thanks for the wake-up call. I didn't realize how much I was hurting my child.

I think that's the kind of response that parent education can elicit from people. When I was preparing to come here tonight I wondered what I could have or what would have helped me when I was struggling in trying to be a parent and an ex-spouse. I think the thing that would have helped the most was if I had just known something. There's no book that tells you how to do this, and I think a parent education course would have been just great had I had the opportunity to go.

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Finally, we turn to Diana Carr from the Ottawa parenting program.

Ms. Diana Carr (Individual Presentation): Thank you for the opportunity to appear before the committee. I'm here with Dr. Margaret DeCorte, who is a child psychologist. She teaches at the University of Ottawa and is a presenter at the course I'm going to tell you about.

The Ottawa branch of the Ontario Association for Family Mediation and the County of Carleton Law Association jointly sponsor a program in Ottawa that's offered twice yearly. It's a six-week program of two hours per evening. The program is designed to provide information and some specific tools to separating and divorcing spouses. It recognizes that separation is a crisis, and that a spouse is required to make rapid changes at a time when he or she is most threatened and vulnerable.

• 1855

The choices that must be made and the information on options that are available to the individual are discussed and canvassed at the program. The separation and divorce experience program is to help the separating people through the readjustment period as they move into their changed life patterns.

As I said, the program is jointly sponsored, and it is marketed in the following manner: notices are sent to every community newspaper in the Regional Municipality of Ottawa-Carleton, and a notice is sent to every community centre in Ottawa.

Every law association member receives a copy of the brochure, and family lawyers receive a bunch of copies that they can distribute to new clients. They are also encouraged to write letters to the clients and tell them about the program.

On one occasion a notice was sent to every doctor's office through the medical courier newsletter. The letter, with brochures, was sent to every employee assistance program counsellor in the district, of which there are over 90, from which we have received referrals that we know of in the past.

The program presenters themselves, about 30 of them, alternate in making presentations over the course of several years, and distribute pamphlets at their workplace. It could be through law firms, counselling offices, hospitals, churches, and a web site.

As I said, the format is six sessions. It's two hours, from 7.30 to 9.30, and it runs twice yearly, in the spring and in the fall. It was initially held in the offices of the Law Society on Eccles Street in Ottawa, which is in the Centretown area. In the last few years it has been held at the Ottawa courthouse.

At each session the coordinator introduces two presenters who are volunteers from the two sponsoring organizations. The presenters are experts, or possess specific skills about the topic of the evening.

The sessions are as follows. First, there are the emotional stages of separation and divorce. The second one is children, families, and parenting issues, and Margaret DeCorte will speak of those two sessions. The third one is a presentation of alternatives to the legal process, and mediation, communication, alternate dispute resolution. All of those are discussed at that session.

The next session is legal rights and issues, the role of lawyers, and the role of the children's lawyer. At that session information about the legal process is given. All sorts of questions are canvassed, such as custody and access, support issues, and property issues.

The fifth session is the courts. At that session we actually meet in a courtroom. One of the Ottawa judges comes to hear a mock motion. The participants who attend the session sit in. They actually sit in the jury box, and they get a bird's-eye view of what an actual interim motion is.

It's very effective. It usually takes about 40 minutes. The rest of the time the judge explains why he or she made certain decisions, and answers questions.

So it's really helpful. I think it's really valuable in showing the participants how quickly a matter can be dealt with, and how custody can be dealt with in 20 minutes or 15 minutes. I think it's a very valuable learning process.

The final session is an overview and discussion session at which the participants can answer questions. There's always a lot of questions. They've had a chance to think about what they've learned in the last five weeks, and they can come back to things that are of particular concern to them.

They don't discuss their personal issues at the session. They are anonymous. They don't have to give their names or share any personal information, but certainly they have questions of a general nature that can help them in their own case.

The presenters use overheads, flip charts, hand-outs, role play—which is the mock motion—and lectures to deliver the material to the parties. There is a very great amount of material, and the participants have to assimilate quite a lot in these two-hour session.

In the first five years of the program the average attendance was between 20 and 30 persons in each program. In the last three years the attendance has dropped off, so there are only about 12 or 15 people at each program.

There have been no statistics or records. The evaluations are voluntary and anonymous. I can tell you that the sessions have been rated almost consistently as excellent.

In every single session the participants have been just so grateful for the information, and they often say we should be advertising this more, which we've done as much as we can. They think that more people should know about it, and they're very happy with what they've learned.

• 1900

Anecdotally, I can tell you that there have been people who have resolved their case because of what they've learned, and they've told us that over the period of the program.

The cost of the program is $80. At one time the Ontario Legal Aid Plan covered the cost of the participants who had legal aid certificates, but the plan no longer covers those costs.

I'll let Margaret DeCorte speak about the content of the program, and if there is any extra time, we may just comment on why we think the program participation has dropped off. Thank you.

Dr. Margaret DeCorte (Individual Presentation): I'd like to thank you for the opportunity to speak here, and also for the other presenters who have already presented quite a lot of information to you.

In summary, I'll present a bit of the good, the bad, and the challenges of our program. I think the good is that we've had very positive reviews from participants. Everyone who has participated almost unanimously has found the sessions to be extremely helpful.

We generally have a male and female presenter so that we address the needs of both men and women in the group. We've generally had equal enrolments of men and women, 50-50 enrolments. So we've considered that a very positive aspect.

Also, there are people in the community who approach us as a pool of experts to provide information to the community. We regard that as being very positive.

The difficulty is that we sometimes feel as though we are preaching to the converted. We are often talking to people who are doing fairly well already, but who would like to do better. We're certainly appreciative that they are there, but we would hope to reach some of those families who are even more in distress.

The challenging part has been with our enrolments over the past couple of years. We do make this accessible, and widely advertise it. We try to keep the fees low enough so that it's manageable. Yet we have difficulty with enrolments.

Ours is probably the only voluntary program of the ones you have heard about. For that reason I am in favour of mandatory education presented, as many of the other people have said, as early as possible.

Every day in my clinical work I work with children and families, some of whose parents are contemplating a separation, or children have begun to worry about parental separation. At that point I would like people to have lots of good information.

There is lots of good information around. I teach at the University of Ottawa, and I have regular access to videos from the National Film Board, which are extremely helpful to people. There's lots of good literature out there, but the people who need it the most are sometimes the least likely to access it and the least able to get it.

The reason I am in favour of the mandatory program is that I'm a fairly recent convert to technology. I've actually become quite impressed with the delivery of information over the Internet and through video. The kind of video you saw presented here is extremely helpful to families.

It would be much easier for families to access something like this than to commit to six consecutive Tuesdays, as we're asking families to do. That's very difficult.

We know that parenting stress increases in the year following separation or divorce. Often resources are stretched very thin, and it's very hard for people to go out into the community and access these programs.

I would just refer to some of Lisbeth Schorr's work. I presented a brief ahead of time. I don't believe that it has been distributed yet, but Lisbeth Schorr, who is a U.S. researcher, has written a very helpful book, Within Our Reach. It talks about the aspects of programs that do work. One of the things she emphasizes again and again is that they be easily accessible, not perceived as coercive by families, but rather as supportive, and that they not be difficult in terms of challenging the family's resources financially. We have people in the far north, for instance, who may have difficulty coming into some sort of a program. That is why I'm very much interested in video presentations like the ones that have been produced.

• 1905

In summary, I would very much support a mandatory education program, preferably something on videotape or teleconferenced, preferably with 1-800 numbers so that individuals could access community resources. It should be multifaceted. It should be perceived as supportive, rather than coercive.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Can we move to questions now, because we've heard a lot, and I'm sure that people are interested. Dr. Bennett.

Ms. Carolyn Bennett: Thank you very much. That was great. As we look to mediation as being a way of helping people just telescope how long it takes to get to where they might have gone on their own.... I mean, there's obviously a huge skill set there.

One of the things we've looked at across the country is that there's different training. Maybe from the Family Mediation Canada point of view, accountability, credentialing, pure review.... It's a new discipline, and obviously Quebec has a certain way of dealing with it by having people accountable within their own discipline.

If this becomes a growth profession, as it looks like becoming, how would you see setting up a college? How would you think this would be best looked after in terms of...? For all of you good ones there might be the odd bad one that we wouldn't necessarily want out there.

Mr. Michael Guravich: I'd like to respond to that. There's a long answer, and there's a short answer. I think I'll try to give the short answer.

At the moment we have people who are currently running a project, the testing of the certification process for family mediators. I have to say that prior to that, though, we spent approximately five, possibly six years developing the standards for what we view as the basic requirements for certification by our organization.

As you probably already know, there is no requirement for any mediator to be certified in any way, shape or form. Anybody can hang a shingle out there, and call themselves a mediator, absolutely anybody.

Family Mediation Canada has been concerned about this for a long time. We have worked long and hard to develop standards for certification of family mediators. As I was saying, we are now in the process of testing a certification process that we hope to have completed before the end of the year. After that, by January 1999, we hope to have in place a mechanism for people to apply for certification from Family Mediation Canada.

Now, a mechanism is one thing; the certification process, certification requirements and standards are another. Standards are extremely rigorous.

You have already had distributed to you a copy of Family Mediation Canada's practice certification and training standards. If you just take a look through that, you will see that a tremendous amount of skill and knowledge is expected of any mediator who hopes to be certified by Family Mediation Canada.

Further to that, and in conclusion, there is a process for desertification, if necessary.

Ms. Carolyn Bennett: Would that end up as provincial legislation, or how would it...?

Mr. Michael Guravich: It's not in any legislation whatsoever. It is our standards. If you want to be certified as a family mediator—and we have three categories of family mediators, by the way—by Family Mediation Canada, these will be the requirements.

• 1910

Now, again, there's nothing that stops anybody else from hanging out a shingle and calling themselves a mediator. In fact I believe there's nothing that would stop them from even calling themselves a certified mediator. But we will fight to the death anybody who wants to put out their shingle and call themselves Family Mediation Canada certified without passing through this process.

Ms. Carolyn Bennett: So is Family Mediation Canada the sort of Good Housekeeping seal?

A voice: Oh, oh.

Ms. Carolyn Bennett: Is there anything you think should be done about the three box-tops and a two-hour course? Maybe they are not as good as your course, but are there other courses that you would deem to be good ones?

Mr. Michael Guravich: I think you may be assuming that we also require that they take certain courses from certain sources or organizations.

Ms. Carolyn Bennett: Yes.

Mr. Michael Guravich: Am I understanding your question right? We accept all comers regardless of their background, if they have a legal background, a social work background, or if they have some other professional background.

What we're interested in is not that they show us certificates from a particular educational institution. We're interested in them demonstrating to us that they have the skills and knowledge we require, which are set out in these standards, if they can demonstrate to our satisfaction that they have these skills and this knowledge.

Ms. Carolyn Bennett: Other than decertifying, is there anything that has people keeping their certification current? For instance, in the College of Family Practice we have to do 50 hours a year in order to stay current—

Mr. Michael Guravich: Yes, they will be expected to keep their skills and knowledge up to date.

Ms. Carolyn Bennett: Does that mean Family Mediation Canada would—

Mr. Michael Guravich: There's an ongoing requirement; certification is only good for five years.

Ms. Carolyn Bennett: —help them with that?

Ms. Orysia Kostiuk: I think I'd like to—

Mr. Michael Guravich: Yes, I'd like for her to answer too. I know she's been dying to comment.

Ms. Orysia Kostiuk: This is to take on a slightly broader stroke outside the Family Mediation Canada piece. As Michael was saying, to say that we'll fight to the death is not a very mediated approach, but we will sort of maintain these standards if we can.

Outside of that, however, in a broader sense, when you mention a college, it's not incumbent upon us, but it would probably be good for our society, if we could start getting more masters of conflict resolution courses into the universities, for example. It would also be good for our society if we had a legislative body, provincial or federal, that looked at standards for certification, and that these become, in essence, law.

This is so that there is someone who can decertify, not only someone with the Family Mediation Canada Good Housekeeping seal of approval, but anyone who hangs up their shingle. Basically, as Michael did say, right now anyone can. That is frightening, which is why we went to this.

But this still will not give Family Mediation Canada a way of controlling anyone out there. It will only give us a way of managing those who certify with us. In broader strokes we need to be looking at more.

A voice: Short of legislative requirements, it's the most we can do.

The Joint Chair (Senator Landon Pearson): Thank you. We will move on.

Ms. Carolyn Bennett: Yes, I just have one little question about violence. There are a lot of people who say that mediation is never appropriate in any situation where there's violence. Do you do something differently once you uncover an abusive relationship, and how would you suggest that we refer to that in terms of our deliberations here?

Mr. Michael Guravich: Mediators' skills, knowledge and awareness in that very area comprise an important part of the certification standards. We expect people to be aware of, to understand, and to be able to react appropriately in situations where there has been abuse, whether before or after the fact.

Ms. Carolyn Bennett: So is it the words “mandatory mediation” that get us into trouble with those groups? For some, mediation would be appropriate, but it just can't be mandatory?

Ms. Orysia Kostiuk: I would say that mandatory mediation is a misnomer, if not an oxymoron. You can't sort of mandate someone to mediate. So I think that's probably where....

Mandatory information where, as I was saying, they have to inform themselves of the different dispute-resolution possibilities is definitely appropriate, and I would strongly support that.

• 1915

I think saying that you must go forward and mediate is probably what would.... It certainly does curl mine, and probably would do it for others. We need to be cautious about that, because where there is an extreme power imbalance, there is no way anyone could mediate.

Mr. Michael Guravich: Or should.

Ms. Orysia Kostiuk: Or should.

Ms. Carolyn Bennett: Thank you.

The Joint Chair (Senator Landon Pearson): Okay. Mr. Forseth.

Mr. Paul Forseth: Thank you, and welcome to the committee. I'd just particularly like to say to Margaret DeCorte that I really appreciate this document. I suppose it is a very brief summary of basic assumptions, especially on the social side, that might form the basis of what mediators and/or people providing information should be looking at as to what is in the best interests of children.

I've often said that the worst things that have been done to kids by parents and the system have all been done in the name of the best interests of children.

The message we've been hearing today, of course, is that you're very positive on having information sessions. We've heard from other groups that it can work when it is part of court regulation, perhaps a court issue in process. It's not going to happen and you're not going to get your court date unless you can provide some proof that you've completed these educational modules. That's quite distinct and separate from referring out to mediation for problem resolution. We must not get the two mixed up.

In view of all the things we're going to be hearing, the mandate of the committee is to make some kind of report to government by the end of November. Part of that report has to suggest possible legislative change to the Divorce Act itself.

In view of what you bring to the table today, I'm wondering if you have any specific recommendations of how the Divorce Act itself could be amended to make the operation of both the information modules and mediation more likely to be brought into play.

Are there any takers?

Ms. Jeanne Byron: Sure, I will.

Mr. Paul Forseth: Go ahead.

Ms. Jeanne Byron: One of the things that I think needs to be emphasized is the responsibility of lawyers to ensure that their clients have full information about mediation and other conflict resolution options. Merely saying “Have you thought about mediation?” is not sufficient. There needs to be something that's really much stronger there.

I do have some concerns, though, about putting the parent education program requirement in legislation. It has to be done carefully, because by putting it in legislation, all of a sudden you also have to put into legislation how many hours, what's the content, who's going to teach it, what are the qualifications, where is it offered, is there a fee? I think you could be creating more problems than good, even though the idea is good.

The other concern I have about legislating parent education is that for some people, and for some lawyers, the focus will be shifted from the important information that parents need to get to saying that the court and the government do not have the right to tell me what I have to do. And all of a sudden there is a court challenge saying that it is not constitutional.

Certainly in Edmonton during the pilot program we had many lawyers say “It's a good thing you didn't put this in legislation, because we would have fought it all the way to the Supreme Court”. The process that Alberta used was to put it through the rules of court, saying you can't file.

Mr. Paul Forseth: Right. I come from British Columbia, the lower mainland. At the provincial level we have what I would say is a relatively successful mandatory educational module being run in Burnaby. The judges and the local registry there will not issue process and give court dates unless.... We have similar content and so on in the program down in Richmond, but the experience is the very same evidence as was given here: because it's voluntary, you're preaching to the converted. Those who come really don't need it, and the take-up rates are much less.

So your recommendation about the mandatory aspect certainly seems to be appropriate. And with respect to saying it should be in the regulations, this Parliament just did some tremendous things under the regulations concerning child maintenance, and all of that.

Go ahead.

Ms. Orysia Kostiuk: I have two points. If one looks at the peace program's research, which is out of New York State, where they are not mandated, one piece of their research indicated that lawyers are the first point of entry, and perhaps one of the ways around having to legislate the parent education, if one did not want to go that way, is at least legislate that the lawyers be responsible for informing people of the programs that are available.

• 1920

I know, Jeanne, you said that didn't work very well with mediation, but I think it would still be worth looking at having that in the legislation, that the lawyers are responsible for informing them, just as they used to be responsible for looking at issues of reconciliation, and now mediation.

Secondly, research out of Utah showed that when their program in one centre was not mandated, they had an attendance rate of 30 people per month, and after one of their senators went to the program and it went through and became mandated, they have now 500 participants in the centre per month. It speaks to preaching to the converted versus the rest of it.

They are quite adamant. Even if someone is in jail, they have to watch a video. Everyone is there.

Their research also shows—and this is only exit questionnaire research, but I think it is valid for this point—that of even those who had to attend, because of course it is mandatory, of those who have come with reluctance, as you say, 95% of them were glad they were there.

Our research out of Manitoba has also shown that 95% of the people who have attended thought the program was good and it should be mandated. We are not mandated.

Mr. Paul Forseth: I have one further comment. You just mentioned something I had forgotten about, the whole issue of access to court and who the gatekeepers are. Certainly at the Supreme Court level, traditionally it has been lawyers, because everything had to be done by affidavit and there were fees to file in the registry and all that kind of stuff, whereas at family court, we had the famous Berger commission on family law.

We actually set up two experimental courts, built two buildings, and tried to operationalize things and experiment in the field. The access to the system was not through a lawyer; you had to go to see what they called at that time a family court counsellor. That's the person you had to see to get information, to get a court application. Before a process was issued, letters were sent to the other side, and there was an effort to try to get the people together to solve that.

So it was access to the system. You had to go through some kind of mediation, education module, or whatever.

I wonder if there might be some interesting things we could do for the Divorce Act through the regulations, about lawyers not being able to always control the access.

We have an experiment in Vancouver where clients are able to get to the Supreme Court on their own. They're given some kind of a kit, and it's kind of a self-teaching thing. But it's very limited as to how to be able to access that and get that, because a lot of the evidence we've had here at committee is that lawyers are the worst thing in the process and the adversarial system is really a problem.

So I wonder about this other concept of access and who the gatekeepers are.

Ms. Diana Carr: I'd like to comment on that. I'm a family lawyer, and I've been practising in family law for nine years.

My sense of it is that by the time people come to a lawyer, first of all, they're in shock or they're traumatized, and they're not really open at that point to assimilating information about parenting and learning more. They're either hurt or angry or very distressed. I know from talking to them and having them ask me questions at subsequent interviews that they haven't heard what I've said in the first round or the second round.

I take a lot of time in the initial interview to explain the process, to explain the options. I talk a lot about mediation and different dispute resolution options. I draw them diagrams, just to make things simple, and inevitably they ask me on subsequent interviews things I've already told them.

They're hurt and they need to recover, and they're simply not open to things that would make sense to them at any other time in their life.

Before we start putting in regulations, I think these programs should be mandated and we have to look at whether they're effective in addressing those people who would be litigants. In other words, if we put in those mandatory programs, would we be changing the attitudes of and helping the people who normally would be in high-conflict cases or would go to court on custody and access?

• 1925

The ones who are more disposed to working things out more amicably are the ones who come to the voluntary programs. They are the ones who work things out themselves and come to the lawyer and say “We have the terms; just put it into a legal document for us.” And there are a lot of those too.

So before we change the Divorce Act, we need to know that mandatory programs are going to change those cases that are problematic.

Mr. Paul Forseth: But you see, my experience at the family court level is that the gatekeeping was done by a counsellor and the production of the order was done by a counsellor, as was counselling for enforcement and ongoing maintenance of that order. Say they had worked with this counsellor to produce an order. Four months later they're still phoning that same counsellor to help them through some of the unfolding issues as circumstances change. They come to the same counsellor to get an application to enforce unpaid maintenance. A lawyer is never involved.

It worked quite well, and it dealt with custody, access, maintenance, and guardianship. The only thing that family courts of course couldn't deal with was division of family property or exclusive use of the family home. So there's a lot of success there, and I'm wondering how we can ride on that success and transfer some of that to the higher court level, which is still conflicted with a burden of paper and stuff that lawyers control.

Dr. Margaret DeCorte: Could I speak a little bit further on Diana's comment?

We do find that during this process, families are probably at their most vulnerable and they are least able to process the information we give them. Nevertheless, they're the most needy.

I do have some concerns about mandatory education, because among the group in which the divorce would be the most contentious, we have psychiatric patients and people who have very limited financial resources, very limited emotional resources, and a lot of time constraints. So it would be difficult to ask people to go out and educate themselves on the issues that are so important for them to know about and so important for their children's welfare. As a child psychologist, I do have concerns, however, they don't know the options and they don't know the concerns that those of us in the mental health field have for children experiencing separation or divorce.

I frankly don't think it would be too difficult to mandate that they watch a video or read some literature. That would be a rather simple way of communicating the information. To mandate more would have to address a lot of special populations, and that would be very difficult.

Mr. Paul Forseth: Thank you.

The Joint Chair (Senator Landon Pearson): Does anyone have a question?

Senator Duncan Jessiman: No question.

Senator Mabel DeWare: I was curious about the certification of Family Mediation Canada, because in most provinces, if you set up any kind of business and you're going to train people, you have to be certified. Even if it's just a hairdresser who decides she's going to train other hairdressers, she has to go through a certification program and prove what she's doing is legal. And if she's going to take fees for it, all that comes under the jurisdiction of the province.

You people have, I suppose, a constitution and bylaws and everything to form Family Mediation Canada?

Mr. Michael Guravich: It's a corporation.

Senator Mabel DeWare: Your organization is a corporation, is it?

Mr. Michael Guravich: I'm not sure I understand the question. Could you repeat the question, please?

Senator Duncan Jessiman: Is it incorporated, the organization you speak of, which has the word “Canada” in it? How is Family Mediation Canada organized?

Mr. Michael Guravich: We are an incorporated non-profit organization.

Senator Duncan Jessiman: That's what we're asking you.

Senator Mabel DeWare: That's what we wanted to know.

• 1930

Some of you weren't here when the judge was here from Michigan, but all through their material they call it parenting time. I was really quite impressed with that, because we're struggling to find a change in the wording “custody and access”. As you said, it sounds like somebody wins and somebody loses. It's very important for us, I think, when we write, or help write, or recommend to the government that we write new legislation in this area, that we make it so that it's family oriented. We have to get away from that....

If any of you have any suggestions for some phrases we could use, we'd appreciate it.

Ms. Maggie Fietz: We're really concerned about the issue of who becomes a facilitator, who becomes a mediator. It's not our area, but it's almost as though the present system says, let the buyer beware. We need more public education so that people ask, if they're going to a program, “Are you a certified mediator?” or “Are you a certified parent educator?” There are programs that can be developed on a national basis without being in legislation, which then can really give some credibility and assure some quality in terms of the courses that are available to parents.

The Joint Chair (Senator Landon Pearson): I'll stop you there for a moment. I think you've misunderstood Senator DeWare's question, and I really should have said right at the beginning that it would have been helpful to put these things in your ears, because the acoustics in this room are rather poor.

Ms. Maggie Fietz: Right.

Senator Mabel DeWare: I'm interested in what you're saying—

The Joint Chair (Senator Landon Pearson): Go ahead with what you're saying and then she can repeat what—

Senator Mabel DeWare: I was also looking for phrases to get rid of “custody and access”.

Ms. Orysia Kostiuk: You may also want to look at the state of Washington, because they changed their legislation to incorporate all different types...language that is gender-neutral, family friendly, and all those things. They actually also found that they had a higher rate of agreement following a change in the language and a less adversarial approach.

One of the things that Family Mediation Canada could possibly do for you is send you a list of some of the language that we think might be helpful. I would also direct you to the Washington legislation, because it's absolutely amazing, and the fact that these changes occurred because of the language speaks to the fact that it's not just semantics. People are triggered by language. Language is everything to us in many ways.

The Joint Chair (Senator Landon Pearson): We did hear from the state of Washington, and they did have a caveat, which is that the legislation about parenting plans—the research has been done, and they think it was very solid research. It shows virtually no difference between the time before they had parenting plans and the time afterward.

They think the problem was that the parenting plan was about 12 pages long, and it was all too awkward. There were too many questions. The more questions you put in, the more opportunity there is to argue.

So we have this interesting information on the Washington state program—good stuff and cautions.

Ms. Orysia Kostiuk: They did change their language though, did they not?

The Joint Chair (Senator Landon Pearson): Yes, the language part—

Ms. Orysia Kostiuk: And that, again, is separate and apart from the pieces of the parenting plan.

The Joint Chair (Senator Landon Pearson): That's right.

Thank you.

Senator Mabel DeWare: In all these volunteer programs that you're asking parents to come to—spouses or individually—what about the children? Do we have programs for children to make them understand what this is all about and to get a better feeling for it?

Dr. Margaret DeCorte: In the proposal I've written up, the consensual proposal, I suggested that there could be a series of videos, one dealing with the legal aspects, one dealing with the adult adjustment aspects, one dealing with children's and parenting adjustment aspects, and the fourth, a children's video that could be presented to children to help answer some of their questions.

Senator Mabel DeWare: The whole reason is we're trying to do whatever we can in the best interests of the child, and I'm hearing mostly from you today about the parents and not the children.

• 1935

Ms. Maggie Fietz: Certainly there are several family service agencies across Canada that are running programs for children, and workshops. They may be held on a Saturday. The Family Service Association of Metropolitan Toronto, which I believe you had a presentation from—

Ms. Carolyn Bennett: Yes.

Ms. Maggie Fietz: —are doing a number of programs for children in order to help them understand the impact of separation and divorce.

Ms. Orysia Kostiuk: In Manitoba, we have a program called “Children in the Middle”, which is associated with the courts' social service arm, and that is functioning. It's a 10-week program for children. Again, the issue with children's programming is that you can only take in eight to ten children at a time, and they don't absorb information, obviously, in the same way as adults, in terms of you can give them the three-hour.... It's hard enough for adults. We're talking as fast as we can and they're trying to take in all this information, as you were saying earlier. I think the programming is there.

I think one of the reasons we focus on the adults is because adults affect the children so much, and if we can help the adults understand what the children need, then they can actually do a lot of that work. They can explain to their children what it is the children need to hear. I think perhaps what we could do is to do liaison with the schools and look at—which brings us full circle to what Jeanne was saying earlier—getting some of the work for children done in the schools. But the parents are key, as we know. Parents have the highest influence and they can do a lot of that work, if we can reach them.

Senator Mabel DeWare: Early.

The Joint Chair (Senator Landon Pearson): Thank you.

It's Mr. Lowther, and then Senator Jessiman.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair.

I came in a bit late, as I had a conflicting engagement, so I didn't hear all the testimony. But I want to press in on statistics or any kinds of measures of success you had, some way of evaluating the people who go through your mediation programs, and compare that to the control group, which is people who haven't. Because I think we talk a bit about the legal profession being the first point of contact, and people aren't taking this in.

My perception of that is if you're at a lawyer, you're already into this “I'm going to win and somebody else is going to lose” thinking when you're talking to a lawyer. So part of that anxiety of the whole divorce is accentuated when you're in front of a lawyer. I recognize we have some really concerned family-related lawyers here, but just the fact that you're a lawyer predisposes people to say “I'm in attack mode now”. So that's kind of tough.

So to back away and go back into the mediation approach, or this first point of contact, as Mr. Forseth was referring to family services, I'm looking at one quote here from Dr. DeCorte that the participant enrolment in the first five years has actually been going down, but those who go through the enrolment feel pretty good about it and are rating it very high. So that's preaching to the converted possibly; people who are keen on mediation go and those who don't want to don't go.

All this is a hodge-podge of comments coming from me to try to find out whether we can actually point to any clear measures that say this works really well, 80% of the time kids perform better, finish school, aren't emotionally disturbed in later life, or whatever. Are there any kinds of measures you can give us?

Dr. Margaret DeCorte: There are two very good books. One is out of Harvard; it's Richard Gardner's work called Child Custody Litigation. He points in that book to the fact that children's adjustment is severely impacted in contentious divorces. And another one on the reference list is Saposnek's, which is Mediating Child Custody Disputes, in which they present essentially the alternative that children not only do better, but parents as well report a higher satisfaction with the agreement if they've had some participation in it. They're more interested in carrying out the dictates of the agreement.

Mr. Paul Forseth: Those are both in your bibliography?

Dr. Margaret DeCorte: Yes.

• 1940

Mr. Michael Guravich: I'd just like to add a couple of comments in response to your question, not speaking in my capacity as representing Family Mediation Canada, but rather speaking in my capacity as a family court counsellor, social worker and mediator in New Brunswick, where I live and work.

In New Brunswick, the domestic legal aid program is set up in such a way as to have mediation as one of its two components, if you will, the other component being provision of legal services of a lawyer. The legal services of a lawyer are provided to all those who require assistance with obtaining child support, or support whether to get the order made in the first instance, or to get an order varied or to defend against getting an order varied or terminated. The legal services are also provided to those who have been screened out of mediation because of abuse factors. Everyone else is offered mediation.

There are about 20 court counsellors throughout the province of New Brunswick. We're serving approximately—I'm a little bit hazy with my memory on the figures, and I'll give very approximate numbers here—3,000 people give or take per year throughout the province. Not all of them go into the mediation stream, but of those who do, the rate at which agreements are achieved is on the order of 65% to 70% of the time. These are all people who therefore do not have to proceed on through the court system as they would have otherwise.

Mr. Eric Lowther: For 100 people who come forward and meet the mediation criteria, how many take it?

Mr. Michael Guravich: How many get in?

Mr. Eric Lowther: How many opt for it? They don't have to do it. So if among the 100 people there are those who aren't of the litigating type or the abuse type, they could go the mediation route. If you have 100 people there, or 100 couples let's say, how many would say yes, I'll take that?

Mr. Michael Guravich: I would say the majority of them, because for most of them there's little alternative. If they don't choose the mediation option and if they're not screened out of the mediation option because of the abuse factors, then they're on their own. They're going to have to go and get their own lawyer at their own expense.

Mr. Eric Lowther: I see.

Ms. Orysia Kostiuk: I thought I understood your question to also be related to the efficacy of parent education, or was it just efficacy vis-à-vis mediation?

Mr. Eric Lowther: Parent education as well, yes, the whole package.

Ms. Orysia Kostiuk: One of the things I had said during the presentation is that there is not very much research currently, especially with respect to Canadian materials. The Manitoba program, and I have the studies here, has been researched beyond just the exit questionnaire, and we're now starting a second study because we've changed the program to include separate programs for low-conflict and high-conflict families.

What I think we really need is to be able to take some of these programs and research them and also do a comparative research on a few different types of programs to see whether there is any difference in efficacy between one program and another and to see if we can't find a hybrid that actually addresses most of the questions. We definitely require more research in this country on these programs.

Ms. Jeanne Byron: If I could add a comment to that, I quite agree with Orysia. There's not been a great deal of research done on Canadian programs. Certainly the Alberta one had fairly limited research. I'm not sure if you had Jack Arbothnot and Don Gordon in from the Center for Divorce Education.

Jack Arbothnot is a researcher first, and they have done a lot of research comparing the program they developed, called “Children in the Middle”, which is video-based, with other video-based programs and a control group that had no parent education. I think according to the last study I read they tracked them for over a two-year period—so it's quite lengthy—trying to determine whether the parent education program had any long-term effects. Their research is quite thorough and well documented. And if he's not going to be appearing before you, I can give you a contact for that information.

• 1945

Generally, though, one of the key things that came out of that on parent education was the earlier the better, and the earlier the lower the litigation and re-litigation rates are. If you can get people into a parent education course as soon as possible, within weeks of them filing documents—which isn't necessarily early, but within weeks of filing documents—it can impact on how many people go to court to fight over custody and access.

The Joint Chair (Senator Landon Pearson): Could you just finish off and then Senator Jessiman can go ahead?

Mr. Eric Lowther: Yes.

With the shortage of good research in this, I appreciate that and the other recommendations. I saw the researchers nodding, so I'm sure we'll make a connection and bring that into the mix.

Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Senator Jessiman.

Senator Duncan Jessiman: I think what I'm hearing from all of you is it would be great if these 30% of the people who get married in the next while got this education. I get the 30% because you tell us that of everyone who gets married, 50% get divorced and 30% have children. So we're dealing with 60% of 50%, so 30% of the marriages have children, and therefore those people have to have this education.

I want to hear from Diana Carr after, if you will, about why your statistics have gone from 20 to 30 a month down to 10 to 15.

Also, Ms. Byron, you said it has to be voluntary. I'm all for it being very early on, maybe in school, but we heard the statistics for when it was mandatory. It was 20 a month or thereabouts, but when it was mandatory, was it 95 or 200? Somebody here was telling us that where it was mandatory, the number of people who attended was fivefold.

I think you, Ms. Byron, were the one who said, “I'm sure glad you didn't make it mandatory in Alberta, because if you had, we would have taken you to the Supreme Court under the Charter of Rights.” That's going to cause us difficulty, I think, because from what I hear, if it is mandatory, they're going to learn it. I don't care when they learn it—when they get married or at school or whenever—but we have to learn these things. I'd like you to speak to that.

Maybe first Ms. Carr could tell us—because you were going to tell us and never did—why the numbers have dropped so.

Ms. Diana Carr: Well, we think—and again, we don't have any statistics at all; we don't keep statistics—other courses have sprung up in the city, and if there are mandatory two-hour programs, people probably won't want to take the extended program at a cost of $80. So there are other programs competing with our program, for one thing.

The other thing is, people who are separating have so many other concerns that they can't take the time, they often don't have the money, or they don't have day care or night care for their children. Sometimes they are settling into a new home or a new location and possibly a new relationship.

The fact that the program is offered at night probably limits it for a lot of people. I know some of the other programs in the city are held on a Saturday morning, and that seems to have drawn some people away.

Senator Duncan Jessiman: If you were assisted by some grant or something to those who went—either a tax break, or if they take it, they are given certain amounts of money, similar to legal aid—would that encourage people to take it? Because it may be cost-effective to the government. If these families don't get along, they get into court, and even though the litigants sometimes have to pay their own fees, it's a very costly proposition to the government.

If we could save that government time and all the other stress that goes along with separation and divorce and all the problems they have, if that kind of course is going to save government time and government cost, it might be something the government should help pay for. I don't know. Have you ever thought of that?

Ms. Diana Carr: The fact that legal aid no longer pays for people to attend this may have coincided with our dropping registration as well. So probably it would help a lot of people. It would make it easier for people who don't have as much money as others.

• 1950

Senator Duncan Jessiman: I would like to think, Madam Chair, we would look into whether we can find a way we can make it compulsory, because obviously the numbers seem to work.

The Joint Chair (Senator Landon Pearson): I agree with you.

Ms. Diana Carr: If I may pick up on something Michael said, in New Brunswick—I wasn't sure what percentage he said—people ended up in that system. If they didn't, they would be forced to go out and pay for a lawyer. So I think that's telling you right there that things are driven by—

Senator Duncan Jessiman: He's gone to the next step. He's actually to the mediation part of it, whereas we're only talking about the education so that at least they know what's there and what their problems are and what they might run into.

The Joint Chair (Senator Landon Pearson): Miss Byron, you want to make a comment on this too.

Ms. Jeanne Byron: I hope I haven't misled the committee. Alberta's program is mandatory, absolutely, and always has been, right from the beginning.

Senator Duncan Jessiman: Oh.

Ms. Jeanne Byron: My concern was legislating it and how you do that. In Alberta, it's done through the rules of court as a practice note. It goes out to lawyers and tells lawyers you cannot file your petition for divorce until your client submits the document saying they've attended.

Senator Duncan Jessiman: Oh, it already has the way around it. If that works in Alberta, we'll recommend it.

The Joint Chair (Senator Landon Pearson): Mr. Guravich, one of you wanted to comment, or both of you, or all three of you.

Ms. Jeanne Byron: If I could finish, in our first year in Edmonton alone, which has a population of three-quarters of a million people, we had over 3,500 people attend. Some days we had 80 people in a session. The sessions were offered five times a month, so they had some options as to timing, and they could mix and match which night or afternoon they went in. A huge number of people went.

What we found, though—and this is where I have some concerns about the legislation—is that legislation tends to be fairly rigid. We found we had to adjust the course. At first, it was only for divorced people, which means you were married. We had to adjust it to address the issues of people who had never married, and around guardianship. Grandparents came; new partners came. The course really needed to be able to flex.

As it has expanded throughout Alberta, it's still done through the practice note, which goes out to lawyers, and that's driven through the process of not being able to get into court until you've finished the course.

Senator Duncan Jessiman: You may have said it before, but just to remind me and everybody else, is it two three-hour sessions?

Ms. Jeanne Byron: It's six hours, comprised of two three-hour sessions.

Senator Duncan Jessiman: Do you think that's sufficient, or should it be extended?

Ms. Jeanne Byron: It's sufficient.

I am amazed at how you can do it for less than that, because we were always pushing right to the last minute. It would be nice to have another three hours, but for many people, as you've heard here, there are a lot of issues around babysitting—that was a big one—and work requirements.

Our course was funded, so there was no cost. In fact it was open to anybody who wanted to take it, but obviously only certain people had to take it. It was very open.

Senator Duncan Jessiman: Fine, we've clarified that.

In Manitoba, it is not obligatory, though, or is it?

Ms. Orysia Kostiuk: No, it's not. The only way it's obligatory is if they want to access the court-associated mediation services. So there's a semi-involuntary component. If they want mediation, we see the parent education program as the first step in the mediation process.

The Joint Chair (Senator Landon Pearson): Do you want to add something, Ms. Stephenson?

Ms. Kathleen Stephenson: I would like to make a comment.

Family Service Canada would make a distinction between a mandatory information session, which we support, addressing the issues that you mentioned, Jeanne, and that we were talking about in the Ottawa program. There are a number of issues in there: legal issues; alternatives to the legal process; court system; addressing some of the emotional issues. But in that kind of short period of time, from our perspective, we would call it information.

If you want true education, true learning of skills, change of behaviour and attitudes, then we're talking about a much longer process, which can't be mandatory. In the same way that you can't mandate mediation, you can't mandate education.

• 1955

So we would urge the committee to consider lending its support to making information sessions mandatory, which would provide an excellent opportunity for making the case to all parents, because they can see the benefits; they learn about the benefits of a more extended parenting education program, where they will have an opportunity, with skilled leadership, to deal with some of the issues that are barriers to...they can address some of those, and, in the ideal circumstance, you get around some of the other barriers if you have a parallel program for children, which takes care of the child care issue. The two programs can reinforce each other.

We make a distinction between mandatory information session and really strong, effective, and very accessible parenting education. Ideally there would be some kind of financial support for people who are not able to pay, but in our current climate that's perhaps something of a non-starter. However, we've said it.

The Joint Chair (Senator Landon Pearson): You can always ask for it.

Mr. Guravich, I think you had your hand up too.

Mr. Michael Guravich: Yes, I did, but thank you, my comments have been made by others.

The Joint Chair (Senator Landon Pearson): Ms. Kostiuk.

Ms. Orysia Kostiuk: Manitoba's program is called Parent Information, for the same reason.

I just wanted to speak to the financial issues. The research out of Manitoba showed that out of 480 people, in terms of their finances post-separation, 45% decreased a lot and 20.2% decreased somewhat. In other words, 65.2% of families indicated that their income went down. In this most recent research the income of less than $24,999, just under $25,000, was 52% of the participants.

The Joint Chair (Senator Landon Pearson): That's interesting, yes.

I have one very final comment and then we will break. This has been a very interesting session.

Ms. Byron, you were referring to Mr. Arbothnot's research. I understand he did have a focus on the importance of parenting skill development. Could you make a comment about that?

Ms. Jeanne Byron: Certainly. Research in the development of their program focused on...they interviewed parents and children primarily to determine what were the behaviours that were most damaging to children. Basically they were children being put in the middle, either as the spy or the financier or...I can't remember what the others were. There were five of them and they identified them. But it's between the two parents; there's the poor kid going back and forth and getting caught in the crossfire.

So based on those five identified behaviours, they developed a video-based program in which they have five scenarios, each dealing with one of those situations. It's sort of the before and after. They have mom, dad, and child working through a scenario, not unlike the one Orysia showed. Then they break and they have a man and woman psychologist as commentators, talking about what happened, what could have been done differently. Then they replay it, not perfectly—these parents don't get to do it perfectly—but showing an alternative way to do it.

In the material they provide with the video there are several workbooks that are produced on newsprint. They're very cost effective. It's sold to not only groups like ours that are providing parent education programs, but all kinds of groups and agencies. They have a video that trains the trainer. They've also created a children's version that's sort of a flip side of the coin, with the same kinds of support materials and discussion papers.

They have people go through it for a much longer period of time, because they're trying to develop skills, and, as Kathleen said, it needs more time. More often than not, though, in parent education programs like ours, it's information delivery.

The Joint Chair (Senator Landon Pearson): But it's interesting to know about that, and you've given a very clear description of what it is. Thank you very much for that.

Ms. Orysia Kostiuk: Do you know what the cost is?

Ms. Jeanne Byron: The cost is very reasonable. I think the video package for the adult program is under $200. That's after the exchange and everything else. I think it may be $100 U.S. So it's very accessible.

The Joint Chair (Senator Landon Pearson): I might even suggest that the committee get hold of a kit and take a look at it.

Ms. Orysia Kostiuk: I would check prices. I think Manitoba paid $850 to look at that videotape.

The Joint Chair (Senator Landon Pearson): We'll think about that then.

• 2000

Mr. Michael Guravich: I think it's a question of how much of the program you obtain.

Ms. Jeanne Byron: I happen to have a copy of the video with me, if the committee is interested in looking at it—as long as it is returned to me.

The Joint Chair (Senator Landon Pearson): Yes, I would be interested. Thank you very much.

Thank you very much, all of you, for coming. It was really very interesting and useful.

The committee is now adjourned until Tuesday morning, May 19, in Vancouver.